THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


liSili 


A  TREATISE 


ON    THE 


AMERICAN  LAW 


OF 


VENDOR  AND  PURCHASER 


OF 


REAL  PROPERTY. 


GEO.  W.  WARVELLE,  LL.D., 

Author  of  a  Treatise  on  Abstracts  of  Title;  Principles  of 
THE  Law  of  Real  Property,  Etc. 


VOLUME  I. 


SECOND  EDITION 


CHICAGO: 

CALLAGHAN    AND   COMPANY 

1902 


T 


COPYRIGHT,    1890, 

BY 

GEO.    W.    WARVELLE. 


COPYRIGHT,  1902, 

BY 

GEO.  W.  WARVELLE. 


COMPOSITION  BT 

BROWN-COOPER  TYPESETTING  CO., 

CHICAGO. 


TO 

HON.  BENJAMIN  D.   MAGRUDER, 

Justice  of  the  Supreme  Court  of  Illinois, 

this  work  is 

Respectfully  Inscribed  by 

THE  AUTHOR. 


G43S53 


PREFACE. 


In  presenting  to  the  profession  a  second  edition  of  this  work 
I  desire  also  to  exiness  my  deep  sense  of  appreciation  of  the 
favorable  manner  in  which  the  first  edition  has  been  received 
by  both  the  bench  and  bar.  In  many  resp|ects  it  was  a  pioneer 
effort,  for,  while  the  topic  was  old,  its  treatment  was  essen- 
tially a  new  venture  in  American  legal  literature.  The 
English  works,  excellent  in  themselves,  furnished  little  by 
way  of  suggestion  and  nothing  of  practical  aid.  The  Ameri- 
can land  system,  different  from  that  which  prevails  in  every 
other  country,  rendered  the  English  precedents,  in  many 
instances,  comparatively  valueless,  while  the  spirit  of  Ameri- 
can law  has  produced  such  radical  departures  from  the  pro- 
cedure observed  on  the  other  side  of  the  Atlantic  that  the 
methods  of  the  English  commentators  could  not  be  employed. 
I  may,  therefore,  claim  for  my  work,  however  defective  other- 
wise, the  merit  of  originality  in  compilation  and  method  of 
treatment. 

It  would  seem  that  a  subject  of  such  importance  as  Vendor 
and  Purchaser  should  have  early  engaged  the  pen  of  the  legal 
essayist  in  England,  where  property,  for  many  years,  could 
hardly  be  said  to  have  an  existence  detached  from  land.  But 
while  land  was  the  highest  type  of  property,  and  while  the 
first  legal  treatise^  was  confined  to  an  exposition  of  the  man- 
ner in  which  it  was  held,  it  was  yet  not  a  commercial  prop- 
erty, and  the  English  lawyer  was  concerned  only  with  the 
estates  that  could  be  raised  with  respect  of  it  or  the  manner 
in  which  it  might  be  recovered  from  a  disseizor.  It  is  only 
of  late  years  that  freedom  of  alienation  has  been  permitted 
in  England  and  land  become  a  marketable  commodity,  and  a 

1  Littleton's  Tenures. 

V 


vi  PREFACE. 

century  has  not  elapsed  since  the  first  distinctive  treatise 
upon  this  subject  appeared. 

About  the  year  1800,  one,  Lord  St.  Leonards,  then,  how- 
ever, only  plain  Mr.  Sugden,  became  imbued  with  the  purpose 
of  writing  a  book.  He  cast  around  for  a  subject  and  event- 
ually hit  upon  the  title  with  which  his  name  has  long  been 
associated.  When  he  had  announced  his  purpose  he  was  ad- 
vised by  judicious  friends  to  abandon  his  design  as  the  nearly 
universal  opinion  was  that  the  work  would  be  a  failure,  for 
the  reason,  that  the  subjects  to  be  considered  were  too  multi- 
farious for  one  treatise.  But  nothing  dismayed  he  labored  on, 
and  in  1805  the  first  book  on  the  law  of  Vendor  and  Purchaser 
was  published.  A  second  edition  was  issued  the  year  follow- 
ing and  from  thence  until  the  year  1862  a  succession  of  edi- 
tions appeared,  culminating  with  the  fourteenth  in  the  year 
last  mentioned.  Its  depth  of  learning  found  an  appreciative 
audience  on  both  sides  of  the  ocean,  and  in  the  United  States 
it  passed  through  no  less  than  eight  editions,  the  last  being 
issued  in  1873,  with  a  valuable  annotation  by  J.  C.  Perkins. 
To  this  edition  the  references  in  the  present  work  are  made. 

In  the  year  1851  a  further  addition  to  the  literature  of  our 
subject  was  made  by  an  English  lawyer,  Mr.  J.  Henry  Dart. 
His  work,  both  in  style  and  arrangement,  was,  in  some 
respects,  an  improvement  on  Sugden.  The  book  was  well 
received  by  the  English  bar  and  passed  through  six  editions, 
the  last  appearing  in  1888.  The  same  year  of  the  original 
publication  (1851)  an  American  edition  was  produced  under 
the  editorship  of  Thomas  W.  Waterman.  The  editor's  addi- 
tions and  annotations  are  interesting  and  valuable,  but, 
while  the  work  was  well  received,  it  does  not  seem  to  have 
displaced  the  earlier  work  of  Sugden  and  no  subsequent 
editions  seem  to  have  been  issued. 

The  first  work  by  an  American  writer  was  a  thin  octavo 
by  Francis  Hilliard,  which  was  published  in  1858.  Mr.  Hil- 
liard's  book,   while   not   without  originality,   seems  to  have 


PREFACE.  vii 

consisted  largely  of  abridgments  of  the  prior  works  of  Sugden 
and  Dart.  It  does  not  seem  to  have  had  a  large  circulation 
and  is  seldom  alluded  to  at  the  present  time.  A  second,  and 
last,  edition  was  issued  in  1868, 

This,  practically,  completes  the  bibliography  of  the  sub- 
ject. It  will  be  seen  that,  as  a  distinctive  topic,  it  is  still 
comparatively  new,  and  the  same  diflSculties  that  beset  the 
first  compiler  are  still  present.  The  lapse  of  a  century  has 
not  rendered  the  subject  any  less  multifarious  than  when 
Mr.  Sugden's  friends  advised  against  publication  for  that 
reason,  and  the  present  writer  has  had  to  wrestle  with  the 
problem  of  producing  a  work  that  shall  be  compendious,  and, 
at  the  same  time,  adapted  to  convenient  use  by  the  profession. 
I  have  endeavored  to  present,  in  as  compact  and  comprehen- 
sive form  as  the  topics  would  admit,  everything  that  seemed 
germane  to  a  work  which  assumed  to  be  an  exposition  of  the 
relation  of  vendor  and  purchaser.  On  the  other  hand,  I  have 
endeavored  to  discriminate,  as  far  as  possible,  between  topics 
which,  while  incidentally  connected  with  our  subject,  do  not 
partake  of  its  essential  character.  These  latter  I  have 
excluded.  The  arrangement  of  the  first  edition  has  been 
retained  intact,  the  various  sub-heads  seeming  to  follow  in  a 
sort  of  natural  sequence.  In  response  to  numerous  sugges- 
tions I  have  adopted  the  now  very  prevalent  practice  of  num- 
bering the  sections  seriatim  from  the  beginning.  The  changes 
in  the  text  are  mainly  by  way  of  amplification,  with  the 
addition  of  a  few  topics  that  have  been  developed  since  the 
publication  of  the  first  edition.  The  citation  has  been  largely 
increased  by  late  decisions.  In  my  treatment  of  the  subject 
I  have  further  endeavored  to  produce  a  treatise  rather  than 
a  digest  and  while  the  necessary  consequence  has  been  to 
introduce  some  of  my  own  personality  I  have  advanced  no 
conclusions  that  are  not  supported  by  authority,  and  in  cases 
where  doctrines  are  conflicting  have  tried  to  present  both 
sides  in  a  fair  and  impartial  manner. 


viii  PREFACE. 

TluiL  my  work  shall  be  found  altogether  free  from  defects 
would  be,  perhaps,  to  expect  too  much.  I  can  only  say  that  I 
have  brought  to  it  a  painstaking  care,  both  in  the  arrange- 
ment of  the  text  and  the  selection  of  the  cases  by  which  it 
is  supported.  In  this  revision  I  have  re-examined  and  weighed 
every  proposition  stated,  noting  every  change  or  modification 
made  by  the  courts  since  the  first  edition  appeared.  I  may 
further  say  that  all  of  the  work  is  my  own.  I  have  delegated 
nothing  to  others.  The  labor  of  its  compilation  has  been  a 
pleasant  task  and  I  present  it  to  the  profession  in  the  hope 
that  it  may  prove  as  acceptable  as  its  predecessor. 

Chicago,  Sept.  1,  1901.  G.  W.  W. 


PREFACE  TO  FIRST  EDITION. 


The  law  of  Vendor  and  Purchaser,  once  replete  with  many 
subtle  qualifications  and  distinctions,  has  in  the  United  States 
been  reduced  to  a  comparatively  simple  code.  Restraints  on 
alienation  have  been  generally  abolished;  land  is  no  longer 
held  by  precarious  tenures;  and  the  rules  which  govern  the 
sale  and  transfer  of  real  property,  reflecting  the  enlighten- 
ment of  this  commercial  age,  have  been  made  to  conform 
more  closely  to  those  which  prevail  in  other  commercial  trans- 
actions. Much  of  the  simplification  of  this  subject  has  been 
accomplished  in  recent  years,  and  in  this  worlc  an  attempt 
has  been  made  to  compile  the  cases  which  illustrate  the  de- 
velopment of  the  distinctively  American  phases  of  the  law. 

In  the  performance  of  this  task  the  author  realizes  the  grave 
responsibility  of  the  duties  he  has  assumed.  The  American 
law  of  real  property  has  passed  through  many  changes  during 
the  brief  period  of  our  national  existence,  and,  as  yet,  can 
hardly  be  said  to  have  emerged  beyond  a  formative  period. 
The  varying  devices  of  state  and  national  policy,  as  well  as 
the  ever-changing  complications  which  arise  in  the  ordinary 
affairs  and  transactions  of  the  people,  are  constantly  produc- 
ing new  combinations  and  presenting  new  features  for  adjust- 
ment and  determination.  Thus  it  is  that  old  doctrines  become 
obsolete,  and  new  applications  of  legal  principles  must  be 
made  to  meet  the  exigencies  of  the  times.  Uniformity  in 
legislation  and  harmony  in  judicial  construction  would  render 
light  the  burdens  of  the  codifier;  but,  uufortunatelj',  the  spirit 
of  national  unity  does  not  extend  beyond  the  scheme  of  gov- 
ernment, and  in  the  enactment  and  interpretation  of  the  laws 
which  regulate  and  control  the  disposition  of  real  property 

no  two  of  tlie  states  are  exactly  alike. 

ix 


X  PREFACE    TO    FIRST    EDITION. 

The  very  flattering  reception  that  has  been  accorded  to  the 
author's  former  efforts  emboldens  him  to  hope  that  this  work 
may  be  equally  acceptable,  and  with  the  expression  of  this 
hope  he  presents  it  for  the  judgment  of  an  indulgent  pro- 
fession. G.  W.  W. 

Chicago,  Feb.  1,  1890. 


TABLE  OF  CONTENTS. 


PARI^   I. 

THE  CONTRACT  OF  SALE. 

CHAPTER    I. 

THE    SUBJECT-MATTER. 
Abt.  I.     The  Pbopebty. 

PAGE. 

1.  Introductory  1 

2.  Real  property  generally  considered 2 

3.  Land  3 

4.  Minerals   4 

5.  Growing  crops   6 

6.  Trees  and  herbage 7 

7.  Manure   7 

8.  Aerolites   8 

9.  Houses  and  buildings 9 

10.  Fixtures  9 

11.  Continued  —  Rule  for  determination 11 

12.  Mortgaged  chattels  affixed  to  realty 16 

13.  Chattels  left  upon  land 19 

14.  Aqueducts,  conduits  and  pipes 20 

15.  Submerged  lands  21 

16.  Water   23 

17.  Ice   25 

18.  Oils  and  gases  26 

19.  Church  pews    27 

20.  Burial  lots  28 

21.  Appurtenances   29 

22.  Easements   29 

23.  License 31 

24.  Franchises 32 

25.  Property  in  adverse  seizen  of  third  person 33 

Art.  II.     The  Estate. 

26.  Definition  36 

27.  Estates  at  common  law 36 

28.  Estates  under  the  statute 38 

29.  Fee-simple    39 

30.  Fee-tail  40 

xi 


Xii  TABLE   OF   CONTENTS. 

PAGE. 

§     31.  Estates   for    life    42 

32.  Dower    43 

33.  Curtesy   45 

34.  Homesteads  47 

35.  Estates  for  years 48 

36.  Estates  at  will  and  by  sufferance 50 

37.  Joint  estates   50 

38.  Estates  by  entirety  52 

39.  Contingent  interests  and  estates 55 

40.  Expectancies  and  naked  possibilities 56 

41.  Powers 57 

Art.  III.     The  Title. 

§     42.  Title  generally  considered   58 

43.  Classification   59 

44.  Acquisition  and  disposal 60 

45.  Derivation  and  nature  of  title 61 

46.  Marketable  title  defined 62 

47.  Derivative  titles  —  Descent   62 

48.  Continued  —  Purchase  63 

49.  Tax  titles   64 

50.  Color  of  title 66 

51.  The  right  to  the  possession  of  title  deeds. 66 

CHAPTER    II. 

THE    PARTIES. 

Art.  I.     Persons  Sui  Juris. 

§     52.  Generally  68 

53.  Vendors    68 

54.  Vendees  69 

55.  Parent  and  child   70 

56.  Expectant  heirs   71 

57.  Co-tenants 73 

58.  Partners  75 

59.  What  shall  be  considered  partnership  property 76 

60.  How  affected  by  death  of  partner 78 

61.  Real  estate  partnership   80 

62.  "Widow's  dower  in  partnership  realty 80 

63.  Syndicates  —  Joint  stock  companies   81 

64.  Corporations    82 

65.  Municipalities    83 

66.  Assignees  83 

67.  Assignors 84 

68.  Death  of  contracting  party 85 

Art.  II.     Persons  Under  Disability. 

§     69.  Aliens 86 

70.  Infants   88 


TABLE   OF  CONTENTS.  xiii 

PAGE 

71.  Married  women    92 

72.  Husband  and   wife   93 

AuT.  III.    Persons  Incompetent. 

73.  Lunatics  96 

74.  Imbeciles 98 

75.  Drunkards   100 

76.  Convicts 102 

Art.  IV.     Fiduciaries. 

77.  General  principles  103 

78.  Trustees 103 

79.  Mortgages 105 

80.  Executors  and  administrators 106 

81.  Continued  —  Executors  106 

82.  Continued  —  Administrators   107 

83.  Guardians 109 

84.  Trustees  as  purchasers  —  The  rule  stated 110 

85.  Continued  —  Exceptions  to  and  qualifications  of  the  rule. .  112 

CHAPTER   III. 

THE  MEMORANDUM. 

86.  Contract  and  memorandum  distinguished 114 

87.  Statutory  requirements  115 

88.  The  signature  117 

89.  Signature  of  one  party  only  sufficient 120 

90.  Signature  by  agent 121 

91.  Signature  by  corporation 122 

92.  The  contracting  parties  123 

93.  The  terms    124 

94.  The  consideration   125 

95.  The  purchase  price 127 

96.  Description  of  the  property 128 

97.  The  interest  to  be  conveyed 129 

98.  Time  130 

99.  Receipts    132 

100.  Letters  132 

101.  Telegrams  137 

102.  Delivery    137 

103.  Continued  —  Undelivered  deeds  138 

CHAPTER    IV. 

CONSTRUCTION    OF    LAND    CONTRACTS. 

104.  General  principles ' 141 

105.  When  construction  is  for  the  court 143 


XIV  TABLE   OF  CONTENTS. 

PAGlC 

§  106.  When  for  the  jury  144 

107.  Intention  of  the  parties 145 

108.  Construction  deduced  from  acts 146 

109.  When  construction  should  favor  either  party 147 

110.  Entire  and  separate  contracts 148 

111.  Implication 148 

112.  Mutual  and  dependent  undertakings 149 

113.  Precedent  and  contemporaneous  acts 150 

114.  Admission  of  parol  evidence 150 

115.  Continued  —  Collateral  matters  and  conditions 153 

116.  Surrounding  circumstances  and  pre-existing  relations 154 

117.  Usage  and  custom 155 

118.  Ambiguities  156 

119.  Technical  phrases   157 

120.  Contemporaneous  writings   159 

121.  Continued  —  When  variant  from  each  other 161 

122.  Unintelligible  expressions   162 

123.  Printed  blanks   162 

124.  Interlineations  —  Erasures 163 

125.  Proposals  and  offers  —  Options  164 

126.  Continued  —  Option  in  lease  166 

127.  Acceptance  168 

128.  Operation  and  effect 170 

129.  Recitals  172 

130.  Contracts  for  repurchase 172 

131.  Bond  for  conveyance 174 

132.  The  description    174 

133.  Continued  —  Unlocated  land   177 

134.  Continued  —  History  of  title 178 

135.  Description  by  designation 180 

136.  The  medium  of  payment 181 

137.  Conditions  in  avoidance 184 

138.  Time  of  performance 184 

139.  Computation  of  time 185 

140.  Assignment  of  contract  for  security 186 

CHAPTER    V. 

VALIDITY   OF    LAND    CONTRACTS. 
Art.  I.     Generally  Considered. 

§  141.  Preliminary  remarks    187 

142.  Conflict  of  laws 188 

143.  Executed  contracts    188 

144.  Agreements  prohibited  by  statute 189 

145.  Agreements  against  public  policy 191 

146.  Agreements  void  in  part 193 

147.  Allotments  by  chance 194 


TABLE    OF   CONTENTS.  XV 

PAGE 

148.  Sunday   contracts    194 

149.  Agreements  to  convey  by  will 197 

150.  Contracts  procured  by  fraud 198 

151.  Ante-nuptial  contracts  198 

152.  Post-nuptial  contracts   199 

Art.  II.     As  Affected  by  the  Statute  of  Frauds. 

153.  General  effect  of  the  statute 200 

154.  Conflict  of  laws 201 

155.  Entire  contract,  void  in  part 201 

156.  Defense  of  the  statute  —  By  whom  available 202 

157.  What  contracts  must  be  in  writing 202 

158.  Incorporeal  hereditaments 203 

159.  License  to  flood  lands 204 

160.  License  for  right  of  way 205 

161.  The  produce  of  land 205 

162.  Standing  trees    206 

163.  Growing  crops    209 

164.  Ruined  walls  and  buildings 210 

165.  Buildings  to  be  removed 210 

166.  Partition  fence   211 

167.  Parol  reservations  211 

168.  Agreements  to  exchange 212 

169.  Collateral  agreements   212 

170.  Partnership  agreements  for  dealing  in  lands 213 

171.  Memorandum  for  sale  of  partnership  lands 215 

172.  Ante-nuptial   agreements    216 

173.  The  description  217 

CHAPTER    VI. 

THE  RELATION  OF  THE  PARTIES. 

174.  Generally  considered   218 

175.  Option  of  purchase 220 

176.  When  equitable  title  vests 221 

177.  Death  of  one  of  contracting  parties 222 

178.  Subsequent  insolvency  of  the  parties 224 

179.  Payment  of  taxes 225 

180.  Interest  —  Rents  and  profits 226 

181.  The  risk  of  loss 229 

182.  Duty  of  repairing  buildings 229 

183.  Right  of  possession 230 

184.  Delivery  of   possession 231 

185.  Rights  of  vendee  in  possession 231 

186.  Vendee's  assertion  of  hostile  title 232 

187.  Vendee's  possession  not  adverse 235 

188.  Vendee  may  attorn  to  stranger 238 


xvi  TABLE   OP  CONTENTS. 

PAGE) 

§  189.  Judgments  against  vendor   238 

190.  Judgments  against  vendee 239 

191.  Vendor's  possession  after  sale 240 

192.  Vendor's  possession  after  conveyance 240 

193.  Destruction  of  property  —  Proceeds  of  insurance 241 

194.  Continued  —  Rights  of  option  holder 243 

195.  Continued  —  Effect  of  proviso  respecting  insurer's  interest  243 

196.  Effect  upon  insurance  of  proviso  against  sales 244 

197.  Continued  —  Assignment  of  policy 245 

198.  Condemnation  proceedings 245 

199.  Mechanics'  liens  246 

CHAPTER   VII. 

AGENTS    AND    BROKERS. 

§  200.  General  principles  247 

201.  Who  may  act  as  agent 248 

202.  Continued  —  Trustee  as  agent 249 

203.  Appointment  and  authority 249 

204.  Proof  of  authority 252 

205.  Authority  resting  in  parol 253 

206.  Authority  in  writing 254 

207.  Telegram   as  authority 255 

208.  General  and  special  agents 255 

209.  Implied  powers 257 

210.  Agent  must  pursue  his  authority 257 

211.  Agent's  liability  for  breach  of  instructions 258 

212.  For  misconduct    259 

213.  Not  liable  for  errors  of  judgment 259 

214.  Ratification   259 

215.  Effect  of  ratification  as  respects  purchaser 261 

216.  Effect  of  ratification  as  respects  principal 262 

217.  Agent's   signature    262 

218.  Revocation  of  authority 263 

219.  Agency  coupled  with  interest 264 

220.  Agent's  authority  terminates  with  principal's  death 265 

221.  Undisclosed  principal 265 

222.  When  agent  becomes  personally  liable 268 

223.  When  principal  chargeable  with  agent's  acts 270 

224.  Fraud  of  agent 271 

225.  Notice  to  agent  binds  principal 272 

226.  Agent  dealing  for  his  own  benefit 274 

227.  Continued  —  Effect  of  laches  of  vendor 278 

228.  The  right  to  commissions 278 

229.  Continued  —  Agent  must  produce  actual  purchaser 280 

230.  Continued  —  Sale  must  result  from  broker  efforts 281 

231.  Continued  —  Where  more  than  one  broker  is  employed. . . .  284 

232.  Continued  —  Sale  by  owner  without  broker's  interference.  286 


TABLE   OF  CONTENTS.  xvii 

PAUE 

233.  Continued  —  Failure  to  close  within  time  stipulated 288 

234.  Continued  —  Revocation  of  broker's  authority 289 

235.  Continued  —  Sale  by  unlicensed  broker 289 

236.  Continued  —  Agent  as  purchaser 291 

237.  Sale  by  agent  above  stipulated  price 292 

238.  Double  agency   293 

239.  The  measure  of  compensation 295 

240.  Sub-agents  —  Delegation  of  authority 296 

CHAPTER  VIII. 

SALES    BY    AUCTION. 

240.  Generally 297 

241.  The  sale   298 

242.  Sale  "without  reserve" 298 

243.  Particulars  and  conditions  of  sale 298 

244.  Sale  by  plat 299 

245.  Auctioneer's  relation  to  the  parties 299 

246.  Auctioneer  cannot  delegate  authority 301 

247.  Withdrawing   bid    301 

248.  Refusing  bid    301 

249.  Auctioneer's  statements  and  representations 302 

250.  Puffers  and  by-bidders 302 

251.  Vendor  as  bidder 305 

252.  Combinations  among  bidders 305 

253.  Auctioneer's  memorandum   307 

254.  "Who  may  make  the  memorandum 310 

255.  Auctioneer's  receipt  as  memorandum 311 

256.  The  deposit  311 

257.  Resale 312 

PART   II. 

INCIDENTS    OF    THE    CONTRACT. 
CHAPTER    IX. 

INVESTIGATING    THE    TITLE. 

258.  General  principles   314 

259.  Caveat  emptor   316 

260.  Doctrine  of  notice 316 

261.  Constructive  notice   318 

262.  When  purchaser  is  chargeable  with  notice 320 

263.  What  notice  sufficient 321 

264.  What  will  put  a  party  on  inquiry 323 

265.  Notice  from  registration 325 

266.  Recitals  in   deeds 326 

267.  Inquiries  in  pais 327 


Xviii  TABLE    OF  CONTENTS. 

PAOB 

§268.  Notice   of   unrecorded    instruments 328 

269.  Notice  of  parol  agreements 328 

270.  Notice  of  fraud 328 

271.  Possession  as  an  evidence  of  title 329 

272.  Continued  —  Character  of  possessor 330 

273.  Continued  —  Possession  of  prior  vendors 330 

274.  Liens  and  incumbrances 334 

275.  Mortgages  334 

276.  Judgment  liens    335 

277.  Decrees  338 

278.  Mechanics'  liens  338 

279.  Vendors'  liens  338 

280.  Real  estate  charged  with  legacies 339 

281.  Real  estate  charge  with  debts 340 

282.  Easements  and  servitudes 342 

283.  Pending  litigation  342 

284.  Partnership  property   344 

285.  Notice  to  agent 345 

286.  Joint  purchasers    345 

287.  Rebutting  presumption  of  notice 346 

CHAPTER   X. 

THE    ABSTRACT. 

§  288.  General  principles 347 

289.  Duty  of  furnishing  abstract 348 

290.  When  the  abstract  is  made  a  condition 349 

291.  Right  to  time  for  examining  title 350 

292.  Good  and  sufficient  abstract 351 

294.  Originals  and   copies 352 

295.  "What  the  abstract  should  show 354 

296.  Root  of  title 356 

297.  Perusing  the  abstract 357 

CHAPTER  XI. 

OBJECTIONS    TO    TITLE. 

§  298.  Generally  considered   359 

299.  A  marketable  title 361 

300.  "Satisfactory"  title  ^ 364 

301.  "Good"  title  ~ 367 

302.  Title  as  affected  by  attorney's  opinion 368 

303.  Claims   of   title 368 

304.  Title  of  record 369 

306.  Title  by  adverse  possession  and  limitation 371 

307.  Ancestral   titles    372 

308.  Spurious   deeds    372 


TABLE   OF  CONTENTS.  xix 

PAGE 

309.  Hazard  of  litigation    373 

310.  Pending    litigation    374 

311.  Unsatisfied  judgments    375 

312.  Outstanding  incumbrances  376 

313.  Continued  —  Unsatisfied  mortgage   379 

314.  Unpaid  taxes  380 

315.  Unreleased  dower  rights 380 

316.  Dowress'  death 382 

317.  Title  subject  to  defeasance 382 

318.  Trusts  and  other  equities 382 

319.  Equitable  estates  —  Legal  titles  outstanding  in  trustee 383 

320.  Title  acquired  in  violation  of  trusts 383 

321.  Party-walls 385 

322.  Unopened  streets   386 

323.  Clouds  upon  title 386 

324.  Purchase  with  notice  of  defects 388 

325.  Variance  and  discrepancy 388 

326.  Stipulation  for  failure  of  title 389 

327.  Agreement  to  furnish  abstract,  when  an  undertaking  in 

respect  to  title 390 

328.  Immaterial  defects   391 

329.  Waiver  of  objections  to  title 391 

330.  Effect  of  delay  in  making  objections 393 

331.  Defects  in  the  subject-matter 394 

PART   III. 

THE   CONVEYANCE. 

CHAPTER   XII. 

THE    MEDIUM    OF    TRANSFER. 

332.  Deeds  —  Defined  and  distinguished 396 

333.  Forms  of  conveyance 397 

334.  Deeds  of  bargain  and  sale 399 

335.  Warranty  deeds  399 

336.  Quitclaim  deeds  400 

337.  Release  401 

338.  Confirmation  402 

339.  Surrender 403 

340.  Assignment 403 

341.  Defeasance 404 

342.  Covenant  to  stand  seized 405 

343.  Imperfect  deed  —  Operation  and  effect 406 

344.  When  vendee  entitled  to  deed 407 

345.  Time  to  prepare  deed  —  Demand  for  same 407 

346.  Vendee's  right  to  inspect  deed 408 

347.  Vendee  not  required  to  take  deed  from  third  party 409 


XX  TABLE   OF  CONTENTS. 

PAGE 

§  348.  When  contract  has  been  assigned 409 

349.  Objections  to  deed 409 

350.  Duty  of  preparing  deed 411 

351.  "What  conveyance  is  sufficient 412 

352.  Re-execution  of  lost  deeds 414 

CHAPTER  XIII. 

CONSTRUCTION     OF    DEEDS. 

§  353.  General  rules   416 

354.  Construction  in  favor  of  grantee 418 

355.  Ambiguities  and  inconsistencies 418 

356.  The  premises   419 

357.  Recitals  421 

358.  The  parties    421 

359.  Presumption  as  to  grantee  —  Persons  of  same  name 424 

360.  Consideration   425 

361.  The  habendum 427 

362.  Testamentary  writings   428 

363.  Deed  construed  as  a  mortgage 431 

364.  Doctrine   of   relation 433 

365.  Lost  deeds 433 

366.  Forged  deeds   434 

CHAPTER   XIV. 

THE    LAND    CONVEYED. 

§  367.  General   principles   435 

368.  Ambiguous  descriptions   438 

369.  Inconsistent  descriptions    439 

370.  General  and  special  description 440 

371.  Specific  parts   444 

372.  Identification  after  conveyance 446 

373.  Extrinsic  evidence   446 

374.  Construction  by  the  parties 447 

375.  Reference  to   plat 448 

376.  Survey  governs  plat 449 

377.  Identification  of  boundary  lines 450 

378.  Marked  lines  452 

379.  Boundary  by  "parallel  lines" 453 

380.  Estoppel  in  pais   454 

381.  Statements   of   quantity 454 

382.  Streets  and  highways 455 

383.  Continued  —  Unopened  streets   457 

384.  Continued  —  Exclusion  from  grant 458 

385.  Continued  —  Where  grantor  is  without  title 459 

386.  Effect  of  grant  bounded  on  highway 460 


TABLE   OF  CONTENTS.  tti 

PAGP 

387.  Exception    of   highway    460 

388.  Streams  and   water-ways 461 

389.  Continued  —  Construction  of  descriptive  terms 492 

390.  Lakes  and  ponds 464 

391.  Continued  —  Artificial    waters    466 

392.  High-water  mark  466 

393.  Tidal  waters   467 

394.  Riparian  boundary  as  affected  by  plat 468 

395.  Exception  from  riparian  grant 468 

396.  Mines  and  minerals 469 

397.  Operation  of  erroneous  deeds 470 


CHAPTER   XV. 

THE    ESTATE    CONVEYED. 

§  398.  Generally  471 

399.  Rule  of  construction 472 

400.  Legal  and  equitable  estates 473 

401.  Words  of  inheritance  and  limitation 473 

402.  Effect  of  absolute  conveyance 475 

403.  Effect  of  release  and  quitclaim 477 

404.  Conveyance  of  estates  in  fee 478 

405.  Creation  of  life  estate 479 

406.  The  rule  in  Shelley's  case 480 

407.  Creation  of  co-tenancies 483 

408.  Future  estates    483 

409.  Perpetuities  485 

410.  Entailments  486 

411.  Homesteads    488 

412.  Incidents  to  the  grant  as  connected  with  the  use  intended.  489 

CHAPTER  XVI. 

THE    COVENANTS. 

§  413.  General  observations   490 

414.  Creation    of    covenants 491 

415.  Rules  of  construction 492 

416.  Inuring  of  title 492 

417.  What  covenants  a  purchaser  has  a  right  to  expect 493 

418.  Contract  for  conveyance  with  "usual  covenants" 495 

419.  Contract  to  convey  with  warranty 496 

420.  Covenants  limited  to  estate  actually  conveyed 498 

421.  Covenants  running  with  the  land 498 

422.  Effect  and  extent  of  restrictions 501 

423.  Conveyances  by  attorney 502 

424.  Covenant  of   seizin 502 


xxii  TABLE    OF   CONTENTS. 

PAGE 

§  425.  Covenant   for   quiet   enjoyment 503 

426.  Covenant  against  incumbrances 504 

427.  Further  assurance  504 

428.  Covenant  of  non-claim 505 

429.  Covenant  of  warranty 506 

430.  Continued  —  Extinguishment  of   the  covenant 506 

431.  Cancellation  of  corresponding  covenants 507 

432.  Implied  covenants  507 

433.  Statutory  deeds 509 

434.  Where  wife  refuses  to  join 510 

435.  Value  of  covenants 510 

436.  Defective  covenants  —  Operation  and  effect 511 

437.  Quitclaims  515 


CHAPTER   XVII. 

CONDITIONS,    LIMITATIONS   AND   RESTRICTIONS. 

438.  General  principles 517 

439.  Conditions 519 

440.  Continued  —  Classification 521 

441.  Operation  and   effect 523 

442.  Construction    524 

443.  Continued  —  Conditions  in  avoidance 524 

444.  Continued  —  When  construed  as  covenants 524 

445.  Creation  of  conditions 526 

446.  Revesting  of  title 528 

447.  Who  may  take  advantage  of  condition  broken 529 

448.  Who  may  perform 530 

449.  Prevention  of  performance 530 

450.  Time  of  performance 530 

451.  Conditions  in  restraint  of  alienatioh 531 

452.  Continued  —  With  respect  to  persons 533 

453.  Continued  —  With  respect  to  time 533 

454.  Continued  —  In  connection  with  prescribed  and  prohibited 

uses   534 

455.  Continued  —  Intoxicants   535 

456.  Conditional  limitations  536 

457.  Restrictive  stipulations  536 

458.  Restrictions  on   use 537 

459.  Building  restrictions    538 

460.  Prohibited  employments   540 

461.  Enforcement  of   restrictions 542 

462.  Avoidance  of  restrictions 543 

463.  Conveyances  for  support 543 

464.  Conveyance  for  specific  use 545 

465.  Resume   547 


TABLE    OF   CONTENTS.  XXIU 

CHAPTER  XVIII. 

RESERVATIONS    AND    EXCEPTIONS. 

PAOB 

§  466.     Definatory   552 

467.  Creation  of  reservation 553 

468.  Construction   554 

469.  Certainty  an  essential 555 

470.  Must  be  grantor 556 

471.  Right  of  way 557 

472.  Right  of  flowage  —  Water  privilege 559 

473.  Light  and  air 559 

474.  Use  and  occupancy 560 

475.  Reserved  rights  in  the  soil 560 

476.  Standing  timber   562 

477.  Reserved  rights  lost  by  disuse 563 

CHAPTER   XIX. 

EXECUTION. 
Art.  I.    Generally  Considered. 

§478.     Definition    564 

479.  Execution  by  corporation 564 

480.  Variations  and  discrepancies 566 

481.  Execution  in   blank 567 

482.  Attesting  witnesses  569 

Art.   II.     Signing. 

§  483.     General  principles 571 

484.  Method  of  signing 572 

485.  Signature  by  mark.' 573 

Art.  III.     Sealing. 

§  486.     General  views  —  Definition   575 

487.  Necessity  of  a  seal 576 

488.  Method  of  sealing 577 

489.  Omission  to  seal 579 

Art.  IV.     Delivery. 

§  490.     General   principles    581 

491.  The  theory  of  delivery 583 

492.  Intention  the  vital  principle  of  delivery 584 

493.  Presumption  of  time  of  delivery 585 

494.  Presumption   from   recording 586 

495.  Presumption  from  possession  of  instrument 589 

496.  Presumption  in  case  o€  voluntary  deeds 589 


xxiv  TABLE   OF  CONTENTS. 

PAGE 

§  497.  No  presumption  from  execution 590 

498.  Sufficiency  of  proof  of  delivery 591 

499.  Delivery  to  infant 592 

500.  Delivery  to  third  person 593 

501.  Delivery  to  take  effect  after  death  of  grantor 594 

502.  Continued  —  Testamentary  deeds    595 

503.  Deed  retained  by  grantor 597 

504.  "When  grantor  will  be  estopped 598 

505.  Revocation  and  redelivery 599 

506.  Delivery  in  escrow 601 

507.  Acceptance  605 


CHAPTER   XX. 

ACKNOWLEDGMENT. 

508.  General  principles  , 607 

509.  Who  may  take 608 

510.  Form  611 

511.  Venue  612 

512.  Date 613 

513.  Party  acknowledging  must  be  sufficiently  identified 613 

514.  Fact  of  acknowledgment  must  be  stated 615 

515.  Party  acknowledging  must  understand  purport  of  act. . . .  616 

516.  Acknowledgment  by  corporation 616 

517.  Conveyances  by  married  women 616 

518.  Conveyances  of  the  homestead 619 

519.  Authentication  by  officer 621 

520.  Clerical  errors  —  Surplusage  —  Omissions 621 

521.  Proof  of  official  character 622 

CHAPTER  XXL 
REGISTRATION. 

522.  General  principles   625 

523.  Effect  of  registration 626 

524.  What  instruments  must  be  recorded 626 

525.  Equities  and  equitable  interests 627 

526.  Forged  instruments   628 

527.  Governmental  conveyances  628 

528.  Prerequisites  of  registration 628 

529.  Registration  as  affected  by  defective  execution 629 

530.  Imperfect  description 630 

531.  Failure  to  record  by  recording  officer 631 

532.  Effect  of  erroneous  registration 631 

533.  Instruments  recorded  in  wrong  book 633 

534.  Index  entries 633 


TABLE    OF   CONTENTS.  XXV 

PAGE 

535.  Failure  to  index 634 

536.  Deed  withdrawn  after  filing 634 

537.  Priority  635 

538.  Destruction  of  record 636 

539.  Unrecorded  instruments   636 

540.  Continued  —  As  between  the  parties 638 


PART   IV. 

INCIDENTS    OF   THE    CONVEYANCE. 

CHAPTER   XXII. 
EASEMENTS    AND    APPURTENANCES. 

541.  Easements   641 

542.  Appurtenances    642 

543.  "What  passes  as  appurtenant 643 

544.  Theory  of  appurtenant  easements 644 

545.  Profits  a  prendre    646 

546.  Incidents  to  a  grant  as  connected  with  intended  uses 647 

547.  Restrictions  operating  as  easements 648 

548.  Servitudes  by  reservation 649 

549.  Grants  in  fee  construed  as  easements 649 

550.  Easement  distinguished  from  natural  right 650 

551.  Rights  of  way 651 

552.  Ways  by  necessity 652 

553.  City  streets    654 

554.  Unopened   streets  and   roadways 654 

555.  Riparian  rights   656 

556.  Right  of  flowage 656 

557.  Light  and  air 657 

558.  Extinguishment   658 

CHAPTER   XXIII. 

USES    AND    TRUSTS. 

559.  General  principles  660 

560.  What  trusts  allowed 662 

561.  The  subject-matter  662 

562.  The  parties 663 

563.  Creation  of  trusts 663 

564.  Trusts  ex  malificio 665 

565.  Words  of  limitation 666 

566.  Declaration  of  trust 667 

567.  Execution  of  trust  by  trustee 668 

568.  Execution  of  trust  by  statute 669 

569.  Trust  of  rents  and  profits 670 


xxvi  TABLE    OF   CONTENTS. 

PAGE 

§  570.     Duties  and  obligations  of  trustees 670 

571.  Disposition  of  trust  property 672 

572.  Purchaser  of   trust  estate 673 

573.  When    purchaser    must    see    to    application    of    purchase 

money  673 

574.  Trustee's  deed  as  color  of  title 675 

575.  Resulting  trusts  675 

576.  Conveyance  taken  by  one  where  consideration  is  paid  by 

another  677 

577.  Continued  —  Payment  must  be  of  the  whole  or  some  ali- 

quot part  of  the  consideration 679 

578.  Purchase  by  fiduciaries 679 

579.  Joint  purchase  in  the  name  of  one 680 

580.  Fraudulent  grantee,  when  a  trustee 680 

581.  Purchase  in  name  of  wife  or  children 681 

582.  Voluntary  conveyance  682 

583.  Loans  —  Title  taken  as  security 682 

584.  Parol  evidence  to  show  resulting  trust 683 

585.  Parol  proof  in  rebuttal 684 

586.  Removal  or  substitution  of  trustee 684 

587.  Reservation  of  verbal  and  secret  trusts 685 


CHAPTER    XXIV. 

POWERS. 

588.  General  rules  and  principles 687 

589.  Powers  given  to  several 688 

590.  Powers  of  attorney 688 

591.  By  several  persons 689 

592.  Construction   689 

593.  The   subject-matter    691 

594.  Defective  execution  of  power 691 

595.  Registration  of  power 692 

596.  Power  of  infant 692 

597.  Power  of  lunatic 693 

598.  By  husband  and  wife 693 

599.  Revocation  694 


CHAPTER   XXV. 

FRAUDULENT  CONVEYANCES. 

600.  General  principles  698 

601.  Fraud  —  Of  what  consisting 701 

602.  Conveyance  on  secret  trust 703 

603.  Subsequent  validation  of  fraudulent  grants 704 

604.  Valid  conveyance  invalidated  by  subsequent  acts 706 


TABLE   OF  CONTENTS.  Xxvil 

PAQB 

605.    When  deed  permitted  to  stand  as  security  for  sum  paid. . .  706 

60G.     Purchaser    without  notice 707 

607.  Purchaser  with  notice  from  one  who  purchased  without 

notice 708 

608.  Purchaser  without  notice  from  one  who  purchased  with 

notice  709 

609.  Must  have  purchased  in  good  faith 710 

610.  Must  have  paid  value 712 

611.  What  constitutes  value 713 

612.  Purchaser  with  notice 718 

613.  Purchaser  by  quitclaim 720 

614.  Purchaser  from  grantee  by  quitclaim 721 

615.  A  debtor  may  prefer  one  creditor 722 

616.  When   declarations  of  vendor  are  evidence  against  the 

vendee 723 

617.  Exempt  property  —  Conveyance  of  the  homestead 726 

618.  Heirs  of  fraudulent  grantee 726 

619.  Voluntary  conveyances   727 

620.  Operation  and  effect  —  As  betwee'n  the  parties 729 

621.  Continued  —  As  between  the  parties  and  third  persons. . . .  730 

622.  Conveyances  on   inadequate  consideration 732 

623.  Conveyances  from  husband  to  wife 732 

624.  Continued  —  Purchaser  from  wife 734 

625.  Conveyance  to  wife  upon  consideration 735 

626.  Conveyance  to  wife  —  Consideration  paid  by  husband....  738 

627.  Continued  —  Purchaser  from  wife 739 

628.  Expenditures  and  improvements  upon  wife's  land  by  hus- 

band      740 

629.  Property  paid  for  by  wife's  earnings 741 

630.  From  parent  to  child 743 

631.  Parol  gifts   745 

632.  Deed  made  to  perfect  title  of  parol  gift 746 

633.  Ante-nuptial   settlement    747 

634.  Ante-nuptial  conveyances  in  fraud  of  intended  consort  — 

By  wife   748 

635.  Continued  —  By  the  husband 749 

636.  Pleading  and  proof 752 

637.  Effect  of  adjudication  of  fraud 754 

638.  Conveyances  of  expectancies 754 


CHAPTER  XXVI. 

INCUMBRANCES. 

639.  General  observations  756 

640.  Duty  of  purchaser  of  mortgaged  property 759 

641.  Continued  —  Release  furnished  by  vendor 763 

642.  Conveyance  subject  to  mortgage 764 


XXviii  TABLE   OF  CONTENTS. 

PAGE 

§  643.     As  between  vendor  and   vendee 766 

644.  Assumption  of  mortgage  by  purchaser 768 

645.  Contract  of  assumption 771 

646.  Proof  of  assumption  —  Acceptance  of  deed  binds  grantee. .  773 

647.  Assumption  by  parol 773 

648.  Assumption  of  entire  debt  by  purchaser  of  part  of  mort- 

gaged property 774 

649.  Effect  of  assumption  where  grantor  is  not  liable 775 

650.  Effect  of  extension  to  purchaser  upon  mortgagor's  liability  778 

651.  Vendor's  right  to  compel  payment  of  mortgage 779 

652.  Unauthorized  introduction  of  assumption  clause 780 

653.  Stipulation  inserted  through  mistake 781 

654.  Purchaser  subject  to  mortgage  cannot  assert  paramount 

title   781 

655.  Purchaser  cannot  deny  validity  of  mortgage 782 

656.  Continued  —  When  purchaser  may  set  up  defenses 784 

657.  Continued  —  Removal  of  purchaser's  disability  by  acts  of 

grantor 785 

658.  Stipulation  making  whole  debt  due  on  default  of  partial 

payment 786 

659.  Effect  of  release  of  portion  of  mortgaged  land 786 

660.  Vendor's  right  of  subrogation 787 

661.  Presumption  of  payment 788 

662.  Continued  —  Admission  of  lien  and  promise  to  discharge 

same 788 

663.  Order  of  sale  of  mortgaged  property 789 

664.  Contribution    among   purchasers 792 

665.  Purchaser's  right  to  redeem 793 

666.  Continued  —  Costs  on   redemption 794 

667.  Mortgage  estate  converted  into  money 794 

668.  Mortgages  given  prior  to  investiture  of  title 795 

669.  Estoppel  of  mortgagee 795 

670.  Effect  of  unrecorded  mortgage 796 

671.  Lands  held  under  contract 798 

672.  Merger  798 

673.  Deed  with  contract  to  reconvey 800 

674.  Absolute  conveyance,  when  treated  as  a  mortgage 801 

675.  Property  subject  to  judgment 802 


CHAPTER  XXVII. 

VENDOR'S   LIEN. 

Akt.  I.     By  Implication. 

a.     Where  the  Vendor  Parts  with  Title. 

§  676.     General  principles  804 

677.     Derivation  of  the  lien 80o 


TABLE   OF  CONTENTS.  xxix 

PAGE 

§  C78.     Nature    and    operation 807 

679.  Effect  and  extent  of  the  lien 808 

680.  Extends  to  subsequent  purchasers  with  notice 810 

681.  Does  not  affect  purchasers  without  notice 811 

682.  What  constitutes   notice 812 

683.  Is  not  impaired  by  death 813 

684.  Effect  as  against  creditors 813 

685.  When  enforced  in  favor  of  one  not  the  grantor 815 

686.  Continued  —  Purchase  money  paid  by  a  third  party 817 

687.  Title  made  in  name  of  third  person 818 

688.  Recital  of  payment  in  deed 818 

689.  Money  expended  by  vendor  for  improvements 819 

690.  Only  lies  for  a  debt 819 

691.  Entire  and  severable  contracts 821 

692.  In  sales  induced  by  fraud 822 

693.  Land  claimed  as  homestead 823 

694.  Improvements  by  vendee 824 

695.  Minerals    824 

696.  Rights  of  way 825 

697.  Assignment  of  the  lien 825 

698.  Waiver  of  lien 827 

699.  What  amounts  to  waiver  or  abandonment 828 

700.  Continued  —  Effect  of  contract 832 

701.  Continued  —  Effect  of  judgment 832 

702.  Continued  — The  English  doctrine 832 

703.  Vendee  cannot  deny  vendor's  title 833 

704.  Proceedings  for  enforcement 834 

705.  Burden  of  proof 835 

706.  Purchaser's  defenses 835 

707.  Rents  and  profits 836 

708.  Concurrent  remedies   836 

709.  As  affected  by  the  statute  of  limitations 837 

710.  Vendor's  lien  and  mechanic's  lien 838 

711.  Vendee's  lien 839 

b.    Where  the  Vendor  Retains  Title. 

§  712.     The  theory  840 

713.  Nature  of  the  lien 841 

714.  Limitation  of  right  to  foreclose 842 

715.  Implied  waiver 843 

716.  Effect  of  assignment 844 

Art.  II.     By  Contract. 

§  717.     General  principles  845 

718.  By  express  reservation 846 

719.  Formality  of  expression 847 

720.  Recital  of  the  fact  of  unpaid  purchase  money 848 


XXi  TABLE   OF  CONTENTS. 

PAGE 

§  721.     Assuming  incumbrance  as  part  of  the  purchase  money...  849 

722.  Vendor's  lien  on  crops 849 

723.  Reservation    by    separate    instrument  —  Equitable    mort- 

gages     850 

724.  Not  affected  by  subsequent  mortgage 852 

725.  Not  affected  by  independent  security 852 

726.  Not  affected  by  action  at  law 853 

727.  As  affected  by  limitation  —  Presumption  of  payment 853 

728.  Assignment  and  transfer 854 

729.  Subrogation  of  co-purchaser 854 


PART  V. 

REMEDIES    AND    PROCEEDINGS. 
CHAPTER    XXVIII. 

SPECIFIC    PERFORMANCE. 
Art.  I.     Of  Contracts  in  Writing. 

730.  General  principles  857 

731.  What  contracts  may  be  enforced 859 

732.  Can  only  be  of  ascertained  and  existing  contract 862 

733.  The  parties    863 

734.  Agents   864 

735.  Subsequent  purchasers   864 

736.  When  minors  are  interested 865 

737.  Jurisdiction  —  Land  in  another  state 865 

738.  As  dependent  on  conditions 867 

739.  Mutuality  —  Unilateral  contracts 868 

740.  Indefiniteness  —  Uncertainty    869 

741.  Fraud 872 

742.  Contract  induced  by  misrepresentation 873 

743.  Concealment  of  material  facts 874 

744.  Hardship  —  Oppression    875 

745.  Misapprehension  —  Mistake   877 

746.  Laches  and  delay 879 

747.  Continued  —  Notice  to  perform 883 

748.  Defective  title  883 

749.  Deficient  quantity  885 

750.  When  the  vendor  cannot  produce  title  contracted  for....  887 

751.  Inadequate  consideration   887 

752.  Inability  to  perform 890 

753.  Where  wife  refuses  to  join  in  conveyance 892 

754.  Incapacity  of  parties 894 

755.  Gifts  and  donations 894 

756.  Tender  of  performance  —  By  vendee 897 

757.  Continued  —  By  vendor    898 


TABLE   OF  CONTENTS.  XXXl 

PAGE 

758.  Where  contract  has   been   rescinded 899 

759.  Verbal  abandonment  of  contract 900 

700.     Though    performance    be    refused    other    relief    may    be 

granted    901 

761.  Restoration  of  lost  deed 903 

762.  Auxiliary  remedies  —  Ne  exeat 903 

763.  Submissions  and  awards 904 

Akt.  II.    Of  Pakol  Contracts. 

764.  General  principles 905 

765.  The  contract 907 

766.  Payment  of  the  purchase  money , 908 

767.  Possession  909 

768.  Expenditures  and  improvements 910 

769.  Verbal  agreement  to  procure  title  and  convey 911 

770.  Parol  promise  to  purchase  for  another 912 

771.  Compensation  for  improvements 913 

772.  Parol  gifts  915 

773.  Against  vendee  916 

774.  Marriage  —  Ante-nuptial  agreements  916 

775.  Continued  —  Post-nuptial  agreements    917 

776.  Parol  variation  of  written  agreements 919 

777.  Parol  license  919 


CHAPTER    XXIX. 

REFORMATION. 

778.  General  principles 921 

779.  Of  deeds 922 

780.  Of  contracts    923 

781.  Of  voluntary  conveyances   924 

782.  Deeds  of  married  women 925 

783.  Defective  execution 925 

784.  Clerical  errors  and  omissions 926 

785.  Parties    926 

786.  Subsequent  purchasers   927 

787.  Judgment  creditors   928 

788.  For  mutual  mistake 929 

789.  Continued  —  For  mistake  of  one  party  only 931 

790.  Mistake  occasioned  by  fraud 93" 

791.  Mistake   resulting   from   negligence 933 

792.  Mistake  of  the  draughtsman 934 

793.  Mistakes  of  law 936 

794.  Mistakes  as  to  estate 938 

795.  Mistakes  as  to  identity  of  property 939 

796.  Description  with  definite  quantity 941 

797.  Description   without  specification  of  quantity 941 


Xxxii  TABLE   OF  CONTENTS. 

PAGK 

§798.     Description   with   estimated   quantity 941 

799.  False    enumeration    of    quantity 942 

800.  Mistake  induced  by  misrepresentation 942 

801.  Mistake  of  law  induced  by  misrepresentation 943 

802.  Grantee   in  default 943 

803.  As  affected  by  delay 944 

804.  As  affected  by  the  statute  of  frauds 945 

805.  Reformation  will  not  lie  after  an  action  at  law 948 

806.  Re-execution  of  deeds 948 


CHAPTER   XXX. 

FORFEITURE. 

807.  General    principles  —  Definition 950 

808.  Construction 952 

809.  Forfeiture   against   persons   incapacitated 952 

810.  Right  of  forfeiture  a  privilege  of  the  vendor 953 

811.  Continued  —  When  contract  contains  mutual  covenants..  954 

812.  Vendor  entitled  to  the  fruits  of  forfeiture 955 

813.  Vendor  must  have  ability  to  perform 955 

814.  Fraud  of  vendor 956 

815.  How  made   956 

816.  When  vendor  must  first  offer  to  perform 957 

817.  Forfeiture  and  resale  —  Rights  of  second  purchaser 958 

818.  Lapse  of  time   does  not  work   forfeiture 959 

819.  Waiver  959 

820.  Effect   of   indulgence 962 

821.  Acquiescence  by  the  vendee 963 

822.  Relief  in  equity 964 

823.  Annexations  by  purchaser 965 

824.  Forfeiture  of  option 966 

CHAPTER  XXXI. 

RESCISSION. 

825.  General  principles  967 

826.  Mutual   agreement    969 

827.  Novation    970 

828.  Non-compliance  970 

829.  Continued  —  Failure  of  consideration 971 

830.  Estoppel  by  acquiescence 971 

831.  Mistake   971 

832.  Deficiency  in  quantity  —  Contract   executory 974 

833.  Continued  —  Contract  executed    976 

834.  Continued  —  Sales  in  gross 977 

835.  Continued  —  Sale  of  specific  quantity 978 


TABLE   OF  CONTENTS.  XXxiii 

PAGE 

i  836.     Defective  title    97'J 

837.  Inadequacy   of   price 981 

838.  Continued  —  Sales  of  the  equity  of  redemption 983 

839.  Laclies   and    delay  —  Contract   executory 984 

840.  Continued  —  Contract  executed    986 

841.  Abandonment  —  Failure   to  perform 986 

842.  Destruction   of   the   subject-matter 987 

843.  Fraud    990 

844.  Fraud  on  joint  purchaser 994 

845.  Concealment    994 

846.  Misrepresentation  996 

847.  Continued  —  Statements   of   opinion 999 

848.  Continued  —  Statements  as  to  character  of  land 1001 

849.  Continued  —  Statements    respecting   future   acts 1002 

850.  Continued  —  Misstatement  of  law 1003 

851.  Continued  —  Evidence    1004 

852.  Fraudulent   or   improper   acts   of   agent  —  Rescission   by 

vendor  1004 

853.  Continued  —  Rescission  by  vendee 1005 

854.  Recriminatory   fraud  as   a   defense 1006 

855.  Duress   1007 

856.  Undue  influence  1010 

857.  Unforeseen    events    1013 

858.  Gifts  and  donations 1014 

859.  Mental  weakness   1015 

860.  Infancy    1019 

861.  Illegality   1023 

862.  Instruments  signed  without  reading 1024 

863.  Recission   after  conveyance  with  covenants 1024 

864.  When  recission  must  be  entire 1025 

865.  When  recission  may  be  partial ' 1026 

866.  As  affected  by  limitation 1026 

867.  Duty   of   rescinding  party 1027 

868.  Necessity  of  notice 1030 

869.  Rights  of  the  parties  on  rescission 1031 

870.  Of   parol   contracts 1033 

871.  Renewal   after  rescission 1034 

872.  Revocation   of   license 1034 

CHAPTER    XXXII. 

USE  AND  OCCUPATION. 

873.  General  principles  1036 

874.  Contract  to  convey  does  not  confer  right  to  possession..  1037 

875.  Where   contract   fails   through   fault  of  vendor 1038 

876.  Where  contract  fails  through  fault  of  vendee..... 1039 

877.  Occupation  by  vendee  after  abandonment  of  contract....   1040 

878.  Occupation  under  void  contract 1041 


XXxiv  TABLE   OF  CONTENTS. 

PAGE 

§  879.     When  vendee  enters  as  tenant 1041 

880.  Possession    acquired    by    fraud 1042 

881.  Allowance   to  fraudulent  grantee 1042 

882.  Compensation   recovered  by  assumpsit 1043 

883.  Compensation  as  for  trespass 1043 

844.     Against  the  vendor 1044 

CHAPTER    XXXIII. 

ACTIONS   FOR   POSSESSION. 

§  885.  General  principles  1045 

886.  By  the  vendor 1047 

887.  By  the  vendee 1048 

888.  By   third   parties 1049 

889.  Notice  to  quit 1050 

890.  Peaceful  entry  and  repossession  by  vendor 1051 

891.  Forcible  detainer  1051 

892.  Improvements   by   purchaser  —  After   conveyance 1053 

893.  Continued  —  Before  conveyance   1055 

894.  Defenses  to  the  action 1056 

895.  Conclusiveness  of  judgment  in  ejectment 1058 

CHAPTER   XXXIV. 

ACTIONS  FOR  THE  PURCHASE  MONEY. 
Art.  I.     Vendor's  Action  for  Price. 

§  896.     General  principles  1060 

897.  As  affected  by  the  statute  of  frauds 1062 

898.  Continued  —  Contract   executory    1063 

899.  Collateral    and    superadded    agreements   with   respect   to 

purchase  money    1063 

900.  Where  acts  are  concurrent 1064 

901.  Payment  of  money  into  court 1064 

902.  Liability  of  assignees 1065 

Art.  II.     Vendee's  Defenses. 

§  903.  Fraud   1067 

904.  Defective  title  —  Executed  contract 1069 

905.  Continued  —  Executory   contract    1072 

906.  Deficiency  in  quantity 1074 

907.  Defective  quality  1078 

908.  Personal   disability    1079 

909.  Unconscionable  bargains  1079 

910.  Non-tender  of  performance 1080 

911.  Agreements  to  forbear 1081 

912.  Agreements  to   rescind 1082 


TABLE    OF   CONTENTS.  xxxv 

PAGE 

§  913.    Purchaser  may  defend  with  cross-action  pending 1083 

914.  Set-off   1084 

915.  Assignees  of  the  purchase   money 1085 

916.  Where  vendor  repossesses  himself  of  the  land 1086 

917.  Relief  by  way  of  injunction 1088 

Art.  III.     Vknuee's  Action  to  Recover  Back  Price. 

§  918.     When  the  action  lies 1092 

919.  Failure  of  consideration  —  Defective  title 1093 

920.  Continued  —  Defective  quality 1095 

921.  Incumbrances    1095 

922.  Erroneous  deed  1098 

923.  Right  to  deduct  for  waste  and  spoliation 1099 

924.  Voluntary   rescission    1099 

925.  Vendor's  inability  to  perform 1100 

926.  Vendee's  refusal  to  perform 1101 

927.  Recovery  of  the  deposit 1102 

928.  Vendee    under   quitclaim   deed 1104 

Art.    IV.     Parol   Contracts. 

§  929.     Actions  by  the  vendor 1105 

930.  Actions  by  the  vendee 1106 

931.  Failure  of  consideration 1107 

932.  Recovery  of  the  value  of  consideration  —  Work  and  labor  1108 

933.  Demand   for  deed 1108 


CHAPTER    XXXV. 

ACTIONS  FOR  DAMAGES. 
Art.   I.     On  the  Contract. 

934.  General  principles  1109 

935.  Continued  —  When    right  of  action  accrues 1112 

936.  Failure  to  perform  —  Vendor's  refusal 1113 

937.  Continued  —  Vendee's  refusal   1116 

938.  Continued  —  Auction  sales   1118 

939.  Failure  to  perform  collateral  agreements 1120 

940.  Illegality  precludes  recovery 1121 

941.  Mutuality    1122 

942.  Deceit  or  fraud  —  False  representation 1122 

943.  Continued  —  Measure  of  Damages 1125 

944.  Continued  —  Fraudulent  concealment  1126 

945.  False   statements   without   fraud 1126 

946.  False  representations  as  to  value 1127 

947.  Continued  —  Statements  of  opinion  and  fact  distinguished  1130 

948.  False  representations  as  to  rentals 1131 

949.  False  representations  as  to  appurtenances 1132 


XXXvi  TABLE   OF  CONTENTS. 

PAGE 

§  950.     False   representations   as   to   extraneous    facts 1133 

951.  False  representations  as  to  the  condition  of  tlie  property.   1133 

952.  False  representations  as  to  the  quantity 1134 

953.  Misrepresentations  by  third  party 1135 

954.  Failure  to  assign  insurance  policy 1136 

955.  Failure  to  perform  collateral  promise 1136 

956.  Waste    1136 

957.  Injuries  to   lands 1138 

958.  Deprivation    of   possession 1138 

959.  As  affected  by  limitation 1139 

960.  Penalties  and  liquidated  damages 1139 

961.  Continued  —  Non-performance  of   stipulation 1143 

962.  Damages  by  way  of  recoupment 1143 

963.  Compensatory  damages  in  equity 1145 

964.  Damages  for  breach  of  parol  agreement 1146 

965.  Slander  of  title 1148 

Art.  II.     On  the  Covenants. 

§  966.     General  principles  1150 

967.  Seizin  —  Total  breach    1151 

968.  Continued  —  Nominal   breach    1154 

969.  Continued  —  Partial  breach    1156 

970.  Right  to   convey 1156 

971.  Incumbrances    1156 

972.  Continued  —  Extent  and  operation 1158 

973.  Continued  —  Existing  easements    1162 

974.  Continued  —  Unpaid   taxes    1165 

975.  Continued  —  Dower  rights   1166 

976.  Quiet  enjoyment 1166 

977.  General   warranty    1168 

978.  Continued  —  Measure  of  damages 1171 

979.  Limited  warranty    1175 

980.  Attorneys'  fees   1175 

981.  Actions   by    remote   vendees 1176 

982.  Condemnation  of  property  sold 1178 

983.  Further  assurance  1179 

984.  Division   of   covenants 1179 

985.  Set-off  by  covenantor 1180 

986.  Covenants   of   married   women 1180 

987.  Parol   evidence  of   warranty 1181 

988.  Parol  contract  of  indemnity 1183 


THE   LAW 

OF 


VENDOR  AND  PURCHASER 


PART  I. 
THE   CONTRACT   OF   SALE. 


CHAPTER   I. 

THE   SUBJECT-MATTER. 


Art.       I. 

Thi 

:  Property. 

Art.     II. 

The  Estate. 

Art.  III. 

The  Title. 

•     Art.  I. 

The 

Property. 

§1. 

Introductory. 

§14. 

Aqueducts,      conduits      and 

2. 

Real  property  considered. 

pipes. 

3. 

Land. 

15. 

Submerged  lands. 

4. 

Minerals. 

16. 

Water. 

5. 

Growing  crops. 

17. 

Ice. 

6. 

Trees  and  herbage. 

18. 

Oils  and  gases. 

7. 

Manure. 

19. 

Church  pews. 

8. 

Aerolites. 

20. 

Burial  lots. 

9. 

Houses  and  buildings. 

21. 

Appurtenances. 

10. 

Fixtures. 

22. 

Easements, 

11. 

Continued — Rule    for    deter- 

23. 

License. 

mination. 

24. 

Franchises. 

12. 

Mortgaged  chattels  aflSxed  to 

25. 

Property  in  adverse  seizin  of 

realty. 

third  person. 

13. 

Chattels  left  upon  land. 

§  1.  Introductory.  Land,  in  the  United  States,  is  justly 
rej^arded  as  an  ai'ticle  of  commerce.  It  is  said  to  represent 
the  basis  of  all  values  and  to  form  the  foundation  of  all  secu- 
rities. Capital  seeks  it  as  an  investment.  Purchasers  acquire 
it  as  well  for  the  purposes  of  speculation  and  trade  as  for 

X 


2  THE    SUBJECT-MATTER. 

permanent  improvement  or  domicile.  The  absence  of  the  old 
rostric'tious  on  alienation  makes  transfer  easy  and  safe,  while 
the  vast  extent  of  country  that  is  open  to  settlement  and  sale, 
the  marvelous  growth  of  great  cities  and  the  comparative 
cheapness  of  land  in  all  parts  of  the  country,  have  all  com- 
bined to  build  up  a  great  traffic  in  real  property,  and,  as  a 
corollary,  an  extensive  code  of  laws  for  its  regulation. 

In  considering  the  subject  of  real  pro^ierty  from  the  stand- 
point of  a  vendor  or  vendee,  it  will  be  found  that,  while  the 
land  is  what  is  used  and  enjoyed,  it  is  the  interest  in  the  land, 
or  the  duration  and  extent  of  the  enjoyment,  that  actually 
forms  the  basis  of  a  sale.  The  former  may  therefore  be  aptly 
described  as  the  property;^  the  latter  is  covered  by  the  com- 
prehensive term  estate,  while  the  right  or  authority  for  the 
exercise  of  property  rights  is  embodied  in  the  term  title.  In 
the  succeeding  paragraphs  of  this  chapter  it  is  proposed  to 
briefly  enumerate  and  discuss  the  various  subdivisions  of 
these  three  elementary  classes,  and  in  the  remaining  chapters 
of  the  work  the  incidents  that  attach  to  each  and  the  methods 
of  their  acquisition  and  disposal. 

§  2.  Real  property  generally  considered.  Under  the  gen- 
eiic  terai  "real  property"  is  included  not  only  land,  but  all 
rights  and  profits  arising  from  or  annexed  to  the  same  that 
are  of  a  permanent  and  immovable  nature.  These  latter  are 
frequently  classed  as  tenements  and  hereditaments.  Tene- 
ment is  said  to  be  a  word  of  greater  extent  than  land,  signi- 
fying everything  that  may  be  holden  by  a  tenure;  while  here- 
ditament, it  is  asserted,  is  still  more  comprehensive,  including 
both  lands  and  tenements,  and  in  addition  whatever  may  be 

1  For   many  years  legal  writers  to  indicate  incorporeal  as  well  as 

have  been  seeking  a  compendious  corporeal     hereditaments     is     fre- 

expression   that    shall    fully   cover  quently  confusing  and  misleading, 

the  corpus,  or  thing,  to  which  pro-  Under   a   choice    of    difficulties    I 

prietary  rights  attach,  but  thus  far  have  therefore  adopted  a  generally 

without  success.    The  term  "land"  received  colloquialism.   In  common 

has  been  employed  to  indicate  not  speech  we  speak  of  property  in  a 

only  the  soil  of  the  earth  and  its  sense  which  indicates  not  only  the 

increment,  but  also  those  Intangi-  ownership  of  the  thing  but  also  the 

ble  things   which   pass   under  the  thing  itself,  and   this  use  of  the 

name  of  "appurtenances."     But  as  term  seems  to  meet  the  approval 

"land"  has  also  a  definite  and  re-  of  the  legal  profession, 
stricted  meaning,  its  employment 


THE    PROPERTY.  3 

inherited.^  This,  however,  is  one  of  the  abstractions  of  the 
medieval  Enf!;li.sli  lawyers,  and  has  little  meaning  or  signifi- 
cance in  this  country  at  the  present  time. 

Land,  in  its  legal  signification,  comprehends  the  entire 
ground  or  soil  of  the  earth,  together  with  its  produce  or  incre- 
ment, as  vegetation,  waters,  etc.,  and  has  an  indefinite  extent 
upwards  as  well  as  downwards.  It  further  includes  all 
houses,  buildings  and  structures  standing  thereon,^  and  all 
minerals,  fossils  or  gases  beneath  the  surface.'* 

For  convenience  of  classification,  real  propert}'  has  further 
been  divided  into  what  is  known  as  corporeal  and  iiicorporeal; 
the  former  consisting  wholly  of  substantial  and  pennanent 
objects,  and  the  latter  of  rights  and  interests  annexed  thereto 
or  arising  therefrom.  Incorporeal  property,  in  the  sense  in 
which  that  term  is  used  in  the  English  law,^  finds  but  few 
examples  in  the  United  States;  and,  although  the  term  is  in 
common  use,  it  is  mainly  confined  to  that  class  of  rights 
denominated  easements. 

§  3.  Land.  In  its  popular,  but  at  the  same  time  more 
restricted,  signification,  land  is  the  solid  material  of  the  earth, 
without  reference  to  the  character  of  the  ingredients  of  which 
it  is  composed,  whether  soil,  rock,  or  other  substance;  and 
though  for  many  purposes  every  species  of  annexation  or 
appurtenance  will  be  considered  under  the  same  head,  yet 
whenever  a  question  has  arisen  upon  such  annexations  or 
appurtenances  the  foregoing  definition  has  always  been 
adopted  by  the  courts,  and  has  even  found  expression  in  direct 
statutory  enactment.  In  some  instances  state  legislatures, 
with  a  laudable  but  misdirected  desire  to  simplify  the  law 

2  Sacket    v.    Wheaton,    17    Pick.  The  legal  maxim  being  "cujus  est 

(Mass.)    105;    2  Black  Com.  17;   1  solum,  ejus  est  usque  ad  coelum." 

Prest.  Est.  12;  Canfield  v.  Ford,  2S  Broom,  Leg.  Max.  289. 

Barb.    (N.  Y.)    336.  s  Under  this  term  was  included 

•■5  Sudbury     v.     Jones,     8     Cush.  advowsons  and  rents,  which  were 

(Mass.)    189;    Dooley   v.   Crist,   25  held  to  be  of  a  real  nature.   OflSces 

111.   551;     Green    v.   Armstrong,   1  exercisable   within   certain  places, 

Denio  (N.  Y.)  554.  though  not  annexed  to  land,  were 

*  Kier   v.    Peterson,    41    Pa.    St.  said  to  savor   of  the  realty;    and 

362;  Caldwell  v.  Fulton,  31  Pa.  St.  dignities  or  titles  of  honor,  having 

475;   Adams  v.  Briggs  Iron  Co.   7  been   originally   annexed   to   land. 

Cush.   (Mass.)   361;   2  Black.  Com,  were  also  considered  as  real  prop- 

18;   Mott  V.  Palmer,   1   N.  Y.  569.  erty. 


4  THE    SUBJECT-MATTER. 

and  codify  elementary  principles,  have  gone  so  far  as  to 
declare  that  the  term  "land"  includes  not  only  lands,  tene- 
ments and  hereditaments,  but  all  rights  thereto  and  interests 
therein;  but,  as  a  rule,  these  incidents  are  usually  covered 
under  the  generic  term  "real  property,"  and  the  word  "land" 
is  restricted  in  its  signification  to  the  definition  first  above 
given. 

§  4.  Minerals.  Coal,  metals,  and  minerals  of  every  descrip- 
tion, while  in  place,  are  regarded  as  land;  but,  under  the 
system  adopted  in  the  United  States,  mineral  deposits  and 
seams  beneath  the  surface  may  be  sold  and  conveyed  by  deed 
entirely  distinct  from  the  surface  rights.  Such  a  procedure 
was  impossible  under  the  old  English  system  of  conveyancing, 
at  least  so  far  as  unopened  mines  were  concerned,  because 
livery  of  seizin  was  an  inseparable  incident  of  every  convey- 
ance, and  could  not  be  had  of  a  separate  interest  in  land 
beneath  the  surface.  Hence,  notwithstanding  such  interests 
were  not,  in  the  proper  acceptation  of  the  term,  rights  issuing 
out  of  the  land,  but  the  very  substance  itself,  they  were 
usually  regarded  as  incorporeal  hereditaments.^  But  regis- 
tration having  taken  the  place  of  the  ancient  livery,  there  is 
nothing  incongruous  in  considering  a  grant  of  the  substratum 
a  grant  of  land  as  much  as  a  conveyance  of  the  surface  itself."^ 

The  general  subject  of  mines  and  mining  is  still  in  a  transi- 
tion stage,  and  the  exigencies  of  modern  methods  with  respect 
thereto  are  constantly  developing  new  questions.  In  the  old 
days  the  attention  of  vendors  and  purchasers  was  directed 
only  to  the  surface,  and,  as  a  consequence,  the  adjudications 
of  the  courts  related  only  to  such  matters  as  this  contempla- 
tion involved.  The  owner  of  the  surface  was  also  the  owner 
of  everything  above  and  below  it,  his  dominion,  or  right  of 
property,  extending  from  the  zenith  to  the  nadir.  The  value 
of  the  land  was  usually  determined  by  the  arable  qualities 
of  the  surface  or  its  adaptability  for  erections  thereon.  But 
with  the  advancement  of  the  science  of  geology  and  the  devel- 

c  The  same  view  has  been  taken  475;    Knight  v.   Indiana   Coal   Co. 

in  some  of  the  states.     See  Arnold  47  Ind.  110;   Marble  Co.  v.  Ripley, 

V.  Stevens,  24   Pick.    (Mass.)    109;  10   Wall.    (U.    S.)    363;    Adams   v. 

Thompson    v.    Gregory,    4    Johns.  Briggs   Iron  Co.   7  Cush.    (Mass.) 

(N.  Y.)   81.  361;  Riddle  v.  Driver,  12  Ala.  590. 

7  Caldwell  v.  Fulton,  31  Pa.  St. 


THE    PROPERTY.  5 

opment  of  mechanical  appliances  for  penetrating  and  work- 
ing below  the  surface,  have  come  great  changes  in  the  stand- 
ard of  values  relating  to  land  and  a  new  adjustment  of  the 
rights  which  may  be  had  and  exercised  therein.  Now  the 
surface  may  be  separated  from  the  strata  beneath  it  and  there 
may  be  as  many  different  owners  as  there  are  strata,^  Where 
the  owner  of  laud  sells  the  iron,  or  coal,  or  other  mineral  con- 
tained therein,  the  severance  becomes  complete  for  all  legal 
purposes  and  each  separate  layer  or  seam  becomes  invested 
with  practically  the  same  legal  attributes  and  subject  to  the 
same  legal  incidents  as  the  surface.^ 

A  right  to  enter  upon  the  lands  of  another  and  raise  min- 
erals at  a  stii)ulated  i)rice  per  ton,  or  upon  any  other  terms 
which  do  not  comprehend  a  sale  in  gross  or  for  a  round  sum, 
stands  upon  a  different  footing,  and  falls  strictly  within  the 
definition  of  an  incorporeal  hereditament.^^  Such  a  privilege 
confers  no  exclusive  right  and  must  be  exercised  in  common 
with  the  grantor.  It  is  much  in  the  nature  of  a  license,  even 
though,  it  be  irrevocable,  and  is  not  equivalent  to  a  sale,^^ 
even  though  it  is  stipulated  that  the  privilege  shall  be 
accorded  to  no  one  else.^-  An  incorporeal  hereditament,  how- 
ever, can  only  be  transferred  by  deed  with  all  the  formalities 
required  by  law  for  the  conveyance  of  a  corporeal  right.i^ 

An  express  grant  of  all  the  minerals  or  mineral  rights  in  a 
tract  of  land  is,  by  necessary  implication,  the  grant  also  of 
the  right  to  work  them,  unless  the  language  of  the  grant 
itself  rei)els  this  construction.^-*  It  also  involves  the  inci- 
dental right  to  penetrate  the  surface  of  the  soil  for  the  min- 
erals, and  to  use  such,  means  and  processes  for  the  purpose 
of  mining  and  removing  them  as  may  be  reasonably  necessary, 
in  the  light  of  modern  inventions  and  of  the  improvement  in 

8  Lillibridge  v.  Coal  Co.  143  Pa.  ^-  Johnston  Iron  Co.  v.  Cambria 
St.  293.  Iron  Co.  32  Pa.  St.  241. 

9  Chartiers  Coal  Co.  v.  Mellon,  i3  Thompson  v.  Gregory,  4  Johns. 
152  Pa.  St.  2S6.  (N.  Y.)    81. 

10  Johnston  Iron  Co.  v.  Cambria  n  This  is  the  result  of  the  fa- 
Iron  Co.  32  Pa.  St.  241;  Carnahan  miliar  maxim  that,  "when  any- 
V.  Brown,  60  Pa.  St.  24;  Melton  v.  thing  is  granted,  all  the  means  of 
Lombard,  51  Cal.  258;  Ryckman  v.  obtaining  it,  and  all  the  fruits  and 
Gillis,  57  N.  Y.  68.  effects  of  it.  are  also  granted."    1 

11  Funk  V.  Haldeman,  53  Pa.  St.  Shep.  Touch.  89. 
243. 


6  THE    SUBJECT-MATTER. 

the  arts  and  sciences,  but  without  injury  to  the  support  for 
the  surface  or  superincumbent  soil  in  its  natural  state.^^ 

§  5.  Growing  crops.  Although  growing  crops  are  ordina- 
rily regarded  as  personal  ])roperty,  yet  as  between  vendor  and 
vendee  they  are  held  to  be  realty,  and,  unless  reserved,  j^ass 
to  the  purchaser  of  the  land  as  being  annexed  to  and  forming 
a  part  of  the  freehold. ^'^  Wliere  the  vendor  has  made  a  sale 
of  all  his  right,  title,  interest  and  estate  in  the  land,  it  is  but 
fair  to  suppose  that  the  growing  crops  entered  into  the  view 
of  the  purchaser,  and  formed  part  of  the  consideration  for 
the  purchase  price  which  he  paid  for  the  land;  and  this  con- 
struction is  the  one  generally  adopted  by  the  courts.^'^ 

Whether  the  reservation,  as  above  indicated,  must  be  in 
writing  is  a  question  upon  w'hich  there  seems  to  be  some  dis- 
pute; for,  while  the  rule  is  undoubtedly  absolute  that  the 
natural  products  of  the  earth,  as  trees,  etc.,  can  only  be 
reserved  in  writing,  it  seems  that  grain,  vegetables,  and  other 
growing  crops  that  come  within  the  definition  fructus  indus- 
triales,  may  be  prevented  from  passing  as  realty  by  a  parol 
reservation.^^  But  this  doctrine  is  in  direct  antagonism  with 
the  settled  principles  of  law  governing  the  construction  of 
deeds;  and  if  it  is  conceded,  as  it  must  be,  that  growing 
crops,  unless  reserved,  pass  as  part  of  the  land,  and  no  reser- 
vation is  made  in  the  deed  of  conveyance,  it  would  naturally 
follow  that  parol  evidence  would  be  inadmissible  to  show 
that  an  interest  did  not  pass  by  the  deed  which  the  law  says 
did  pass. 

A  distinction  is  made,  however,  betw^een  growing  crops  and 
ripened  crops,  and  it  has  been  held  that  the  rule  above  stated 
applies  only  where  the  crops  are  immature  and  have  not 
ceased  to  draw  nutriment  from  the  soil  at  the  time  of  sale. 
The  ripened  crop  is  said  to  possess  the  character  of  personalty 
and  the  fact  that  it  rests  upon  the  land  unsevered  is  of  no 
consequence.     In  such  event  the  crop  is  no  longer  regarded 

15  Marvin  v.  Mining  Co.  55  N.  Y.  i^  Talbot  v.  Hill,  68  111.  1,06;  Bull 
538;    Wilms    v.    Jess,    94    111.    464;    v.  Griswold,  19  111.  631. 

Turner  v.  Reynolds,  23  Pa.  St.  199.  is  Backenstoss   v.    Stahler's    Ad- 

16  Bear  v.  Ritzer,  16  Pa.  St.  178;  m'rs,  33  Pa.  St.  251;  Johnston  v.. 
Mcllvaine  v.  Harris,  20  Mo.  457;  Tautlinger,  31  Iowa,  502.  See, 
Gibbons  v.  Dillingham,  10  Ark.  9;  contra,  Mcllvaine  v.  Harris,  20  Mo. 
Smith  V.  Leighton,  38  Kan.  544.  457. 


THE    PROPERTY.  7 

as  part  of  the  realty,  and  hence  will  not  pass  to  the  purchaser 
of  the  land.'" 

§  6.  Trees  and  herbage.  As  has  been  shown,  the  term 
"land"  embraces  not  only  the  soil,  but  its  natural  produce 
growing  upon  and  affixed  to  it.^o  Trees  and  herbage,  in  place, 
are  therefore  integral  parts  of  the  realty,-'  and  pass  with 
a  grant  of  the  laud.--  Trees  and  shrubbery  grown  upon  prem- 
ises leased  for  nursery  purposes  would  probably  be  held  to 
be  personal  i»roi)erty,  as  between  landlord  and  tenant;  but 
between  vendor  and  vendee  they  would  pass  with  the  laud 
unless  specially  reserved.  It  is  further  necessary  that  suck 
reservation,  if  made,  shall  be  in  writing.  It  is  no  uncommon 
thing  in  sales  of  improved  property  to  make  verbal  arrange- 
ments, contemporaneous  with  the  written  contract,  whereby 
a  reservation  is  made,  or  attempted  to  be  made,  of  fruit  trees, 
ornamental  shrubbery,  etc.;  but,  whatever  may  be  the  rule 
in  regard  to  annual  crops,  it  seems  certain  that  with  regard 
to  trees  the  reservation  must  be  in  writing,  and  parol  proof 
of  contemporaneous  verbal  agreements  is  inadmissible  to 
impair  the  effect  of  a  written  contract. 

§  7.  Manure.  In  sales  of  agricultural  lands  it  is  a  gener- 
ally accepted  rule  that  manure  lying  upon  the  property  passes 
to  the  vendee  as  an  incident  of  the  land,-^  unless  specially 
reserved  in  the  deed.^^  In  a  few  instances  a  distinction  has 
been  made  between  manure  Ijing  in  heaps  in  a  barnyard  and 
where  it  has  been  placed  or  spread  upon  the  land,-^  the 
former  being  regarded  as  personalty;  but  this  distinction, 
which  originally  was  made  in  favor  of  tenants,  is  not  gener- 
ally recognized.-'^    The  rule  as  just  stated,  however,  does  not 

10  Garanflo   v.    Cooley,    33    Kan.  23  Kittredge  v.  Woods,  3  N.  H. 

137;  First  Nat.  Bank  v.  Beegle,  52  503;    Sawyer  v.   Twiss,   26   N.    H. 

Kan.   769.  345;     Goodrich    v.    Jones,    2    Hill 

20  Harrell  V.  Miller,  35  Miss.  700.  (N.   Y.),   142;    Fay  v.   Muzzey,  13 

21  Claflin  V.  Carpenter,  4  Met.  Gray  (Mass.),  53;  Haslem  v.  Lock- 
(Mass.)  580;  Rich  v.  Zielsdorf,  22  wood,  37  Conn.  500;  Chase  v.  Win- 
Wis.  544;    Slocum  v.  Seymour,  36  gate,  68  Me.  204. 

N.  J.  L.  139;  Carpenter  v.  Medford,        24  Kittredge  v.Woods,  3  N.  H.  503. 
99  N.  C.  495.  2.-,  Ruckman  v.  Outwater.  28  N.  J. 

22  Smith    V.    Price,    39    111.    28;    L.  581. 

Sparrow  V.  Pond,  49  Minn.  412;  Mc-  2c  The  reason  for  the  rule,  it  is 

Kenzie    v.   Shows,   70    Miss.   388;  said,  is  that  it  is  for  the  benefit 

Matter  ot  Chamberlain,  140  N.  Y.  of  agriculture  that  manure,  which 

390.  is  usually  produced  from  the  drop- 


8  THE    SUBJECT-MATTER. 

apply  to  manure  made  in  livery-stables,  or  in  buildings  uncon- 
nected with  aj^riculturul  property  and  out  of  the  course  of 
husbandry ;-''  nor  even  in  the  business  of  stock-raising,  the 
stock  not  being  fed  upon  the  products  of  the  land.^s  In  such 
cases  the  manure  is  not  considered  as  incident  to  the  land, 
and  does  not  pass  by  a  conveyance  of  it.-'*  Nor  will  the  rule 
apply  in  sales  of  agricultural  land  where  only  a  small  portion 
of  the  farm  is  sold,  although  the  manure  happens  to  be  piled 
upon  that  part.^^ 

§  8.  Aerolites.  We  have  scientific  authority  for  the  asser- 
tion that  from  six  to  seven  hundred  stones,  presumably 
departures  from  other  planets,  fall  annually  upon  the  surface 
of  the  earth.  In  their  general  features  they  may  fairly  be 
classed  as  "accretions,"  and  as  such  would  become  the  prop- 
erty of  the  owner  of  the  fee.  The  fact  that  an  aerolite  is,  in 
one  sense,  a  "lost"  or  "abandoned"  article,  does  not  militate 
against  the  position  above  taken,  nor  will  it  belong  to  the 
first  finder  under  the  general  rules  of  law  relating  to  per- 
sonalty. Nor  will  the  fact  that  it  is  deposited  through  the 
medium  of  air  and  not  of  water  make  it  any  the  less  an  accre- 
tion, for  every  wind  is  performing  the  same  oflice  and  remov- 
ing particles  from  the  land  of  one  proprietor  and  depositing 
them  on  that  of  another.  In  their  original  location  aerolites 
would  undoubtedly  be  classed  as  realty — integral  portions  of 
some  planetary'  land,  and  by  disintegration  and  removal 
through  natural  causes  they  become  parts  of  the  new  location 
on  which  they  fall.  When  in  place  they  are  as  much  a  part  of 
the  land  they  rest  upon  as  any  other  natural  object  and  pass 
by  a  sale  of  the  freehold.  When  severed  by  the  owner  they 
are  not  distinguishable  from  other  stones  or  mineral  deposits.^^ 

pings  of  cattle  or  swine  fed  upon  questions.    Fay  v.  Muzzey,  13  Gray 

the   products    of    the    farm,   and  (Mass.),  53. 

composted  with  earth  or  vegetable       27  Needham  v.  Allison,  24  N.  H. 

matter  taken  from  the  soil,  and  the  355;  Parsons  v.  Camp,  11  Conn.  525. 
frequent  application  of  which  to  28  Snow  v.  Perkins,  60  N.  H.  493. 
the  ground  is  so  essential  to  its       29  Plummer  v.  Plummer,  30  N.  H. 

successful    cultivation,  should    be  558. 

retained    for   use    upon    the   land.        •"'o  Collier  v.  Jenks,  19  R.  I.  137. 
Such   undoubtedly   is   the    general        31  The   subject  of    ownership   in 

usage   and   understanding;    and   a  aerolites     is     comparatively     un- 

different   rule   would   give   rise   to  touched     in     jurisprudence.       The 

many    difficult   and    embarrassing  only  case  which  has  come  under 


THE    PROPERTY.  9 

§9.  Houses  and  buildings.  ^Villlin  the  term  "land"  are 
inchidcd  all  houses  and  l)iiildiii<;s  s(an<lin<;  thereon,-'^-  which 
pass  hy  a  conveyance  of  the  land  without  special  mention ;3'* 
and  in  all  contracts  for  the  sale  and  conveyance  of  lands  the 
improvements  resting.?  upon  or  ailixed  to  them  at  the  time  are 
considered  as  part  of  the  purchase.  On  the  other  hand,  land 
which  is  essential  to  the  use  of  a  building  will,  it  seems,  pass 
bj  a  conveyance  of  the  building  if  it  appears  that  such  was 
the  intention  of  the  parties."'* 

But  houses  and  buildings  are  realty  only  while  in  place. 
A  severance,  propria  viyore,  changes  the  character  of  the  prop- 
erty from  real  to  personal,  irrespective  of  the  means  by  which 
it  may  be  accomplished;  and,  so  far  as  the  legal  effect  is  con- 
cerned, it  matters  not  whether  the  severance  was  by  the  act 
of  God  or  the  act  of  man.^^ 

§  10.  Fixtures.  A  fixture  has  been  defined  by  Bouvier  as 
a  personal  chattel  affixed  to  real  estate,  which  may  be  severed 
and  removed  by  the  party  who  has  affixed  it,  or  by  his  personal 
representatives,  against  the  will  of  the  owner  of  the  freehold.''^ 
The  term  "fixture,"  however,  is  a  most  uncertain  title,  and  in 
many  cases — possibly  a  majority — is  used  in  exactly  a  con- 
trary sense  to  the  definition  just  given,  being  employed  to 
indicate  a  chattel  annexed  to  realty  so  as  to  become  a  part  of 
it.  Indeed,  it  is  difficult,  if  not  impossible,  to  give  a  definition 
of  the  term  which  uuiy  be  regarded  as  of  universal  application, 
or  to  formulate  in  one  rule  that  which  will  enable  us  to  deter- 

the  observation  of  the  writer  is  by  them  as  a  store,  situated  on 
that  of  Goddard  v.  Winchell,  86  land  described  as  lot  No.  1,  in  block 
Iowa,  71,  which  embodies  and  sus-  No.  9,  in  the  village  of  White- 
tains  the  doctrine  of  the  text.  water."  In  point  of  fact  the  store 
:!2  Sudbury  v.  Jones,  8  Cush.  not  only  covered  lot  No.  1,  but  also 
(Mass.)  189;  Ford  v.  Cobb,  20  N.  Y.  the  west  two  feet  of  lot  No.  10  in 
344;  Lipsky  v.  Borgmann,  52  Wis.  that  block;  but  the  court  held  that 
256.  all  the  land  covered  by  the  build- 
as  West  v.  Stewart,  7  Pa.  St.  122;  ing  would  pass,  such  being  the  ap- 
Leland  v.  Gassett,  17  Vt.  403;  parent  intention  of  the  parties; 
Washburn  v.  Sproat,  16  Mass.  449.  and  see  Whitney  v.  Olney,  3  Mason 
•■!4  Gibson  v.  Brockway,  8  N.  H.  (c.  ct.)  280,  where  a  grant  of  a 
465;  Moore  v.  Fletcher,  16  Me.  66;  mill  was  held  to  include  the  land 
Wilson  V.  Hunter,  14  Wis.  683.  In  under  and  adjoining  same, 
this  case  a  mortgage  described  the  •■*.';  Buckout  v.  Swift,  37  Cal.  433. 
premises  conveyed  as  "the  three-  3«  1  Bouv.  Law  Diet.  593. 
story  brick  building  now  occupied 


10  THE    SUSJECT-MATtER. 

iniiu'  the  (}iiestion  as  to  whether  given  appendages  or  annex- 
ations to  houses  or  lands  are  to  be  considered  as  part  of  the 
realty,  and  hence  partaking  of  its  immovable  character,  or 
simply  as  personal  property  which  follows  the  person  of  the 
owner. 

It  is  a  rule  of  the  common  law  that  w'hatever  is  accessory 
to  land  is  a  part  of  it,  and  passes  by  alienation.  The  neces- 
sities of  trade  have  caused  a  modification  of  this  rule  so  far 
as  it  may  affect  the  relation  of  landlord  and  tenant,  and  courts 
recognize  and  enforce  the  right  of  removal,  by  tenants,  of 
chattels  annexed  to  the  freehold  for  the  purposes  of  manu- 
facture, agriculture  or  domestic  convenience.^''^  But  as  be- 
tween vendor  and  vendee  the  rule  is  still  applicable,  except 
so  far  as  it  may  have  been  modified  by  statutory  regulation; 
and,  where  the  question  is  not  affected  by  the  terms  of  the 
contract,  appurtenances  and  chattels  attached  to  lands  or 
buildings  for  permanent  and  habitual  use,  and  contributing 
to  their  value  and  enjoyment,  pass  by  a  grant  of  the  freehold, 
and  after  conveyance  cannot  be  severed  by  the  vendor  or  any 
person  other  than  the  owner.^^ 

Just  what  shall  be  regarded  as  a  fixture,  and  what  a  chattel 
sufficient  to  escape  the  operation  of  the  foregoing  rule,  is  not 
always  an  easy  matter  to  decide.  Many  things  pass  by  a  deed 
of  lands,  being  put  there  by  the  vendor,  which  a  tenant  who 
had  put  them  there  might  have  removed;  and  they  will  pass 
to  the  vendee,  although  attached  for  the  purposes  of  trade, 
manufacture,  or  even  for  ornament  or  domestic  use.  Thus, 
utensils  and  machinery  appertaining  to  a  building  for  manu- 
facturing purposes  ;3^   gas-pipes,  fittings  and  other  apparatus 

3T  It  may  be  remarked  here  that  numerous,    and,    with    respect    to 

very  many,  indeed,  a  large  proper-  this    relation,    the    rule    is    better 

tion,  of  the  cases  involving  ques-  settled. 

tions  as  to  whether  particular  ar-       38  Tourtellot  v.   Phelps,    4    Gray 

tides   were   fixtures    have    arisen  (Mass.),  578;  Kennard  v.  Brough, 

between  landlord  and  tenant;  and,  64  Ind.  23;   Lapham  v.  Norton,  71 

from  the  very  nature  of  the  rela-  Me.   83;    Westgate   v.   Wixon,    128 

tion  between  these  parties,  as  well  Mass.  304 ;  Alvord  Mfg.  Co.  v.  Glea- 

as   from   the   widely   differing  cir-  son,    36    Conn.    86;    Van   Kuren  v. 

cumstances    attending    each    case,  R.  R.  Co.  38  N.  J.  L.  165;  Stillman 

has  come  the  difficulty  of  settling  v.  Flenniker,  58  Iowa,  450;  Home 

and  establishing  a  universal  rule.  v.  Smith,  105  N.  C.  322. 
But  the  cases  between  vendor  and       so  As  potash  kettles  in   an  ash 
vendee  are  less  difficult  as  well  as 


THE    PROPERTY. 


11 


designed  for  purposes  of  illumination,"'  including  even  chan- 
deliers, burners,  etc.,  when  it  is  apparent  that  such  was  the 
intention  of  the  parties,"  or  they  are  clearly  shown  to  be 
accessories  and  not  merely  furniture;'-  water-pipes  and  con- 
duits;^^  ranges,  Ixtilcrs  and  tanks  attached  in  a  permanent 
manner,'' ♦  will  all  i)ass  by  a  conveyance  of  the  land  without 
special  mention.  Stoves  and  hot-air  furnaces  or  other  appli- 
ances for  heating,  when  put  in  as  permanent  annexations,*'' 
have  been  held  to  i)ass,  though  on  this  point  the  authorities 
are  not  agreed.^'"'  Window  and  door  screens,^^  storm-doors,  or 
other  adjuncts  made  and  fitted  to  a  house,  usually  go  with  it, 
though  if  never  actually  used  and  the  house  is  complete  with- 
out them,  they  might  not  jmiss  even  if  on  the  premises;^'*  but 
generally  anjthing  that  the  vendor  has  annexed  to  a  building 
for  the  more  convenient  use  and  improvement  of  the  property 
passes  by  his  deed  unless  specitically  reserved. 

§  11.  Continued — Rule  for  determination.  The  rule,  there- 
fore, would  seem  to  be  that  where  the  annexation  is  perma- 
nent in  its  character  and  essential  to  the  purpose  for  which 
the  property  is  used  or  occupied,  it  should  be  regarded  as 
realty  and  pass  with  the  grant  of  the  freehold;   and  this  not- 

factory  (Miller  v.  Plumb,  6  Cow.  -lo  McKeage  v.  Ins.  Co.  81  N.  Y. 
(N.  Y.)  665) ;  a  cotton-gin  perma-  38;  Hays  v.  Doane,  11  N.  J.  Eq.  96. 
nently  fixed   (Bratton  v.  Clawson,    Contra,   Vaughn   v.   Haldeman,   33 


2  Strob.  (S.  C.)  478);  a  steam- 
engine  to  drive  a  bark-mill  (Oves 
V.   Oglesby,  7   Watts    (Pa.),   106); 


Pa.  St.  522. 

41  Fratt  V.  Whittier,  58  Cal.  126; 
Keeler  v.  Keeler,  31  N.  J.  Eq.  191; 


kettles  set  in  brick  in  a  print-  and  see  Johnson  v.  Wiseman,  4 
works  (Despatch  Line  v.  Bellamy  Met.  (Ky.)  359;  Smith  v.  Common- 
Mfg.  Co.  12  N.  H.  207)  ;  iron  stoves    wealth,  14  Bush   (Ky.).  31. 


fixed  to  the  brick-work  of  chim- 
neys (Goddard  v.  Chase,  7  Mass. 
432) ;  fixed  tables  in  a  mill  (Sands 


<^  Keeler  v.  Keeler,  31  N.  J.  Eq. 
191. 

"  Philbrick    v.    Emry,    97    Mass. 


V.   Pfeiffer,   10   Cal.   259);    blower    134. 


and  pipe  conveying  air  to  a  forge 
(Alvord  Mfg.  Co.  v.  Gleason,  36 
Conn.  86);  a  factory  bell  (Ibid., 
and  Weston  v.  Weston,  102  Mass. 
514);  heavy  iron  table  in  a  glass 
factory  (Smith  Paper  Co.  v.  Servin, 
130  Mass.  511);  an  iron  drill  fast- 
ened by  screws  and  braces    (Sav- 


^i  Fratt  V.  Whittier,  58  Cal.  126. 

■*■>  Goddard  v.  Chase,  7  Mass.  432; 
Blethen  v.  Towle,  19  Me.  252; 
Stockwell  V.  Campbell,  39  Conn. 
362. 

4"  See  Towne  v.  Fisk,  127  Mass. 
125. 

4-  Petengill  v.  Evans,  5  N.  H.  54; 


ings  B"k  v.  Stephens  Tool  Co.  130    Fratt  v.  Whittier,  58  Cal.  126. 
Mass.  547).  ^s  Peck  v.  Batchelder,  40  Vt  233. 


12 


THE    SUBJECT-MATTER. 


vvitlisstauding  the  connection  between  tbem  may  be  such  that 
it  may  be  severed  without  physical  or  lasting  injury  to 
either.-*^ 

The  mode  of  annexation,  while  of  controlling  efficacy  as 
between  landlord  and  tenant,  and  possibly  between  executor 
and  heir,  is  of  comparatively  small  moment  as  between  vendor 
and  vendee — the  purposes  of  the  annexation  and  the  intent 
with  which  it  was  made  being,  in  most  cases,  the  important 
consideration/'^  Physical  annexation  is  not  indispensable 
provided  the  article  is  of  an  accessory  character,  and  in  some 
way  in  actual  or  constructive  union  with  the  principal  sub- 
ject,''*^ and  not  merely  brought  upon  it/^  jt  ig  true  the  mode 
of  annexation,  in  the  absence  of  other  proof  of  intent,  may 
become  controlling,  as  where  it  is  in  itself  so  inseparable  and 
permanent  as  to  render  the  article  necessarily  a  part  of  the 
realty  ;^^  and  even  in  case  of  a  less  thorough  method,  the  man- 
ner of  attachment  may  still  afford  convincing  evidence  that 


40  Green  v.  Phillips,  L6  Gratt. 
(Va.)  752;  Smith  v.  Common- 
wealth, 14  Bush  (Ky.),  31;  Par- 
sons V.  Copeland,  38  Me.  537 
Keeler  v.  Keeler,  31  N.  J.  Eq.  191 
Bishop  V.  Bishop,  11  N.  Y.  123 
Pea  V.  Pea,  35  Ind.  387;  Philipson 
V.  Mullanphy,  1  Mo.  620;  Cohen  v. 
Kyler,  27  Mo.  122;  Wadleigh  v. 
Janvrin,  41  N.  H.  503;  Corliss  v. 
McLagin,  29  Me.  115;  Bringhoff  v. 
Munzenmaier,  20  Iowa,  513.  Pon- 
derous articles,  although  only  an- 
nexed to  the  land  by  the  force  of 
gravitation,  if  placed  there  with 
the  manifest  intent  that  they  shall 
remain,  may  be  fixtures.  Wolford 
V.  Baxter,  33  Minn.   12. 

soMcRea  v.  Bank,  66  N.  Y.  489; 
Wheeler  v.  Bedell,  40  Mich.  693; 
Richardson  v.  Borden,  42  Miss.  71; 
Eaves  v.  Estes,  10  Kan.  314;  Leon- 
ard V.  Stickney,  131  Mass.  514; 
Close  V.  Lambert,  78  Ky.  229; 
Thomas  v.  Davis,  76  Mo.  72;  R.  R. 
Co.  V.  Morgan,  42  Kan.  23. 

51 A  thing  may  be  said  to  be 
constructively    attached    where    It 


has  been  annexed,  but  is  separated 
for  a  temporary  purpose,  as  in  the 
case  of  a  mill-stone  removed  for 
the  purpose  of  being  dressed;  or 
where  the  thing,  although  never 
physically  fixed,  is  an  essential 
part  of  something  which  is  fixed, 
as  in  the  case  of  keys  to  a  door, 
or  loose  covers  to  fixed  kettles.  It 
is  perhaps  somewhat  on  this  prin- 
ciple observes  Mitchell,  J.,  that  the 
permanent  and  stationary  machin- 
ery in  a  structure  especially 
erected  for  a  particular  kind  of 
manufacturing  has  been  held  fix- 
tures, although  very  slightly  or  not 
at  all  physically  connected  with 
the  building,  because  without  it 
the  structure  would  not  be  com- 
plete for  the  purpose  for  which  it 
was  erected.  Wolford  v.  Baxter, 
33  Minn.  12;  R.  R.  Co.  v.  Morgan, 
42  Kan.  23. 

52  Wolford  V.  Baxter,  33  Minn. 
12. 

5:5  Lyle  V.  Palmer,  42  Mich.  314; 
Warner  v.  Kenning,  25  Minn.  173. 
Poles  adapted  and  used  for  culti- 


THE   PROPERTY. 


13 


the  intention  was  to  make  the  article  a  permanent  accession.'** 
Still  there  is  no  universal  test;  and  neither  the  mode  of  annex- 
ation nor  the  manner  of  use  can  ever  be  said  to  be  entirely 
conclusive,  the  express  or  implied  understanding  of  the  parties 
being  usually  the  pivot  on  which  the  question  tums.'^^ 

The  greatest  ditliculty  in  the  application  of  the  rules  for 
determining  fixtures  occurs  in  the  case  of  what  may,  under 
ordinary  circumstances,  be  fairly  classed  as  furniture;  as,  con- 
trivances for  heating  and  illumination.  Lamps,  chandeliers 
and  gas-fixtures,  generally,  are  usually  regarded  as  furniture. 
True,  they  are  often  sold  with  the  house,  which  can  hardly  be 
said  to  be  complete  without  them;  but,  unless  there  has  been 


vating  hops  on  a  farm  have  been 
held  to  be  part  of  the  realty, 
equally  while  in  use  and  while 
lying  piled  upon  the  premises. 
Being  intended  for  permanent  use 
upon  the  land  and  necessary  for 
its  proper  improvement,  by  simply 
being  placed  in  heaps  for  a  tem- 
porary purpose,  they  would  not 
lose  their  distinctive  character  as 
appurtenant  to  the  land.  Bishop 
v.  Bishop,  11  N.  Y.  123. 

54  Wheeler  v.  Bedell,  40  Mich. 
693;  Funk  v.  Brigaldi,  4  Daly 
(N.  Y.),  359. 

55  As,  for  instance,  where  the 
building  is  constructed  expressly 
to  receive  the  debatable  articles, 
machinery,  utensils,  etc.,  and  they 
could  not  be  removed  without  ma- 
terial injury  to  the  building;  or, 
where  the  article  would  be  of  no 
value  except  for  use  in  that  par- 
ticular building,  or  could  not  be 
removed  therefrom  without  being 
destroyed  or  greatly  damaged.  Mc- 
Rea  V.  Bank.  66  N.  Y.  489.  A  rule 
for  determining  whether  a  chattel 
is  so  annexed  to  the  realty  as  to 
become  a  part  of  it  is  laid  down 
by  Bartly,  J.,  in  Teaff  v.  Hewitt, 
1  Ohio  St.  511,  as  follows:  "From 
the  examination  I  have  been  en- 
abled to  give  this  subject,  and  a 


careful  review  of  the  authorities, 
I  have  reached  the  conclusion  that 
the  united  application  of  the  fol- 
lowing requisites  will  be  found  the 
safest  criterion  of  a  fixture:  1, 
actual  annexation  to  the  realty  or 
something  appurtenant  thereto;  2, 
appropriation  to  the  use  or  pur- 
pose of  that  part  of  the  realty  with 
which  it  is  connected;  3,  the  inten- 
tion of  the  party  making  the  an- 
nexation to  make  the  article  a  per- 
manent accession  to  the  freehold — 
this  intention  being  inferred  from 
the  nature  of  the  article  affixed, 
the  relation  and  situation  of  the 
party  making  the  annexation,  the 
structure  and  mode  of  annexation, 
and  the  purpose  or  use  for  which 
the  annexation  was  made.  This 
criterion  furnishes  a  test  of  gen- 
eral and  uniform  application — one 
by  which  the  essential  qualities  of 
a  fixture  can,  in  most  instances,  be 
certainly  and  easily  ascertained, 
and  tends  to  harmonize  the  appar- 
ent conflict  in  the  authorities  re- 
lating to  the  subject.  It  may  be 
found  inconsistent  with  the  rea- 
soning and  distinctions  in  many  of 
the  cases,  but  it  is  believed  to  be 
at  variance  with  the  conclusion  in 
but  few  of  the  well-considered  ad- 
judications." 


14  THE    SUBJECT-MATTER. 

a  special  agreement  in  regard  to  them,  they  will  not  pass 
under  the  general  clauses  of  the  deed.^^  Mirrors  are  ordina- 
rily regarded  only  as  furniture;  nor  will  the  fact  that  they  are 
fastened  to  the  walls  for  safety  or  convenience  deprive  them 
of  their  character  as  personal  chattels  and  make  them  part  of 
the  realty ;^'^  but  if  they  are  set  in  the  walls,  with  frames  cor- 
responding to  the  cabinet-work,  and  their  removal  would  leave 
the  walls  in  an  unfinished  condition,  the  rule  is  other wise-''^ 
Portable  hot-air  furnaces  have  been  held  to  come  within  the 
same  rule,^''  and  would,  doubtless,  be  governed  by  the  same 
principles;  but  in  this,  as  in  every  case  involving  the  questions 
just  discussed,  the  intention  of  permanent  annexation  must 
decide  the  matter;  and  where  it  appears  that  either  gas-fix- 
tures'^*'  or  furnaces  ^^  were  considered  as  integral  parts  of  the 
realty,  and  as  such  were  to  pass  with  the  buildings,  effect  will 
be  given  to  such  intention,  notwithstanding  no  mention  has 
been  made  in  the  deed;  and,  generally,  in  all  cases  of  doubt, 
the  rule  for  determining  what  is  a  fixture  should  be  construed 
most  strongly  against  the  vendor.^^  Machinery,  though  essen- 
tially of  a  personal  nature,  yet  when  put  into  a  building  for 
manufacturing  purposes,  becomes  part  of  the  realty  and 
passes  by  a  conveyance;  and  the  true  criterion  in  such  case  is 
not  whether  it  may  be  detached  and  removed  from  the  prem- 
ises without  injury .63 

It  will,  of  course,  be  understood  that  parties  themselves 
may,  by  express  agreement,  fix  upon  chattels  annexed  to 
realty  whatever  character  they  may  see  fit.^"*  Hence,  property 
which  the  law  regards  as  permanent  fixtures  may  be  by  them 

56  Vaughn  v.  Haldeman,  33  Pa.  stones  and  even  the  bolting  cloth 
St.  522;  Rogers  v.  Crow,  40  Mo.  91;  are  parts  of  the  mill  and  of  the 
McKeage  v.  Ins.  Co.  81  N.  Y.  38;  freehold,  and  cannot  be  levied  on 
Jarechi  v.  Philharmonic  Soc.  79  as  personal  property  (Gray  v. 
Pa.  St.  403.  Holdship,   17    S.  &   R.    (Pa.)    413; 

57  McKeage  v.  Ins.  Co.  81  N.Y.  38.  while    the    mill    chains,  dogs  and 

58  Ward  V.  Kilpatrick,  85  N.  Y.  bars,  being  in  their  appropriate 
413.  places  at  the  time  of  conveyance, 

59  Towne  v.  Fiske,  127  Mass.  125.    have  been  held  to  pass  by  a  deed 
GO  Fratt  V.  Whittier,  58  Cal.  126.    of  the  mill.     Farrar  v.  Stackpole,  G 

61  Stockwell     V.     Campbell,     39    Greenl.    (Me.)    154. 

Conn.   362;    Thielman   v.   Carr,   75  e^  Fratt  v.  Whittier,  58  Cal.  126; 

111.  385.  Bartholomew     v.     Hamilton,     105 

62  Fratt  v.  Whittier,  58  Cal.  385.  Mass.  239. 

63  Thus  the  wheels  of  a  mill,  the 


THE    PROPERTY. 


15 


c-oiisiderod  as  pcr'sonal  chatU'ls,  and  that  which,  in  contempla- 
tion of  law,  is  regarded  only  as  personalty  they  may  regard  as 
a  lixdire;  and,  whatever  may  be  tlieir  agreement,  courts  will 
enforce  it."''  If  the  deed  is  silent  in  respect  to  same,  or  conveys 
only  the  realty  and  its  appurtenances,  the  prior  agreement  is 
(•()iiil)etent  to  show  intention  and  lix  the  character  of  annex- 
ations. On  the  contrary,  if  the  deed  mentions  specific  fix- 
tures and  personal  property,  none  other,  as  a  rule,  will  pass 
tliereby.'^" 

But  while  the  agreement  of  parties  may,  to  a  certain  extent, 
supersede  the  general  rule  of  law,  such  agreements  cannot  be 
made  to  injuriously'  affect  the  interests  of  third  parties  who 
buy  without  notice.  A  purchaser  of  realty,  in  the  absence 
of  notice  to  the  contrary,  has  a  right  to  presume  that  he  takes 
the  estate  with  every  appurtenance  which,  under  the  general 
rules  of  law^,  passes  by  a  grant  of  land."^  As  to  him  every 
permanent  improvement  or  annexation  to  the  land  becomes  a 


03  Smith  V.  Waggoner,  50  Wis. 
155. 

<<*>  It  is  not  contended  that  par- 
ties may,  by  contract,  make  per- 
sonal property  real  or  personal  at 
will,  but  that  where  an  article 
personal  in  its  nature  is  so  at- 
tached to  the  realty  that  it  can  bo 
removed  without  material  injury 
to  it  or  to  the  realty,  the  intention 
with  which  it  is  attached  will  gov- 
ern; and  if  there  is  an  express 
agreement  that  it  shall  remain 
personal  property,  or  if,  from  the 
circumstances  attending,  it  is  evi- 
dent or  may  be  presumed  that  such 
was  the  intention  of  the  parties,  it 
will  be  held  to  have  retained  its 
personal  character.  Ford  v.  Cobb, 
20  N.  Y.  344;  Eaves  v.  Estes,  10 
Kan.  314;  Coleman  v.  Lewis,  27 
Pa.  St.  291;  Hunt  v.  Iron  Co.  97 
Mass.  279;  Richardson  v.  Copeland, 
6  Gray,  536;  Haven  v.  Emery,  33 
N.  H.  66. 

CT  Hopewell  Mills  v.  Bank,  150 
Mass.  519;  Tibbets  v.  Home,  65 
N.  H.  242;   Union  etc,  Ins.  Co.  v. 


Tillery,  152  Mo.  421.  As  where  a 
party,  under  a  parol  permission  or 
a  license,  places  upon  the  land  of 
another  a  permanent  improvement, 
with  the  right,  when  he  desires,  to 
enter  and  take  it  therefrom,  he 
may  exercise  that  right  at  any 
time  before  the  permission  or 
license  is  revoked  by  the  land- 
owner, and  probably  would  have 
the  right  to  enter  and  remove  the 
fixture  within  a  reasonable  time 
after  the  revocation,  and  it  would 
seem  that  any  subsequent  vendee, 
who  purchased  the  land  with  no- 
tice of  such  parol  agreement  or 
license,  and  of  the  Interest  of  the 
parties  in  the  fixture,  would  be 
bound  by  such  agreement.  But 
this  is  the  limit  of  the  doctrine, 
and  it  cannot  be  carried  to  the  ex- 
tent of  binding  or  affecting  inju- 
riously third  parties  to  whom  the 
land  has  been  conveyed  without 
reservation  and  to  whose  notice 
the  parol  license  had  not  been 
brought.  Rowland  v.  Anderson,  33 
Kan.  264. 


16  THE    SUBJECT-MATTER. 

lixture,  which  cannot  be  withheld  or  removed;  and  though 
there  are  cases  which  seem  to  hold  a  contrary  doctrine,  they 
are  not  sustained  by  the  volume  of  authority.*'^ 

§  12.  Mortgaged  chattels  affixed  to  realty.  Very  intricate 
questions  will  sometimes  arise  between  vendees  of  realty  and 
third  persons  claiming  rights  or  equities  in  what  are  ordinarily 
termed  fixtures.  As  between  vendor  and  vendee  the  law  is 
now  well  settled,  and  the  same  principles  that  apply  to  contro- 
versies between  the  parties  will  usually  be  effective  as 
between  the  parties  and  third  persons  where  nothing  has 
occurred  to  impart  notice  of  outstanding  rights  and  interests. 
But  where  third  persons,  prior  to  the  purchase  by  the  vendee, 
have  acquired  substantial  rights,  such  as  would  be  protected 
and  enforced  w^ere  it  not  for  the  purchase,  the  law  is  not  so 
clear.  With  respect  to  the  integral  parts  that  go  to  make  up  a 
building — the  bricks,  boards,  etc. — it  is  doubtful  whether  even 
direct  and  positive  notice  would  avail  to  preserve  the  cred- 
itor's rights  or  liens  of  third  persons,  except  as  they  might  be 
saved  by  a  properly  secured  mechanic's  lien;  as  these  things, 
by  being  incorporated  into  the  building,  lose  their  individual- 
ity and  identity,  and  become  absorbed  in  and  made  a  part  of 
the  realty  rather  than  a  simple  annexation  to  it.  With  respect 
to  ponderous  and  bulky  articles,  or  articles  which,  after 
annexation,  still  preserve  their  original  form  and  identity,  and 
are  capable  of  severance,  a  different  rule  would  seem  to  pre- 
vail. Articles  of  this  kind  are  legitimate  subjects  for  fixtures, 
and  are  of  that  class  of  property  about  which  the  law  permits 
parties  to  contract  so  as  to  control,  as  between  themselves, 
their  character  after  being  affixed,  making  them  either  per- 
sonal property  or  real  estate.  The  mortgaging  of  such  articles 
as  personal  property  would,  as  between  the  parties  and  those 
having  notice  thereof,  make  them  such.     Hence  it  has  been 

68  Haven  v.  Emery,  33  N.  H.  66;  nances  without  reservation  to  one 

Dostal  V.  McCaddon,  35  Iowa,  318;  who    continues     the    business    of 

Houx  V.  Seat,  26  Mo.  178;  Rowand  hotel-keeping  upon  the  premises,  if 

V.  Anderson,  33  Kan.  264;  Powers  such  sign  is  attached  so  as  to  be 

V.  Dennison,  30  Vt.  752;   Westcott  immovable  without  force,  and  was 

V.   Delano,    20   "Wis.   541.     A   hotel  so   placed    with    the   intent   of   its 

sign  is  a  fixture  and  appurtenant  remaining  a   permanent    sign    for 

to  a  hotel,  so  as  to  pass  by  a  con-  the    hotel.     Redlon    v.   Barker,   4 

veyance  of  the  hotel  and  appurte-  Kan.   382. 


THE    PROPERTY. 


17 


held  that  where  the  owner  of  land  executes  a  mortgage  upon 
chattels  which  may  properly  be  made  fixtures,  and  subse- 
quently aflixes  them  to  the  laud,  no  [M^^rson  having  knowledge 
of  such  facts  can,  by  purchase  of  the  realty  or  otherwise, 
ac(iuire  from  the  mortgagor  any  title  to  such  chattels  para- 
mount to  the  lieu  created  by  the  mortgage  thereof.*^''* 


«'J  Sowden    &    Co.    v.    Craig,    26 
Iowa,   156;    and    see    Denham    v. 
Sankey,  38  Iowa,  271.     In  the  case 
of  Ford  V.  Cobb.  20  N.  Y.  344,  salt 
kettles  were  bought  by  the  owner 
of  the  fee   and  mortgaged   to  the 
seller  as  personalty  to  secure  the 
purchase   money,  and   were  after- 
ward  affixed   to   the    freehold   by 
being    set    in    brick   foundations, 
from    which    they    could    be    re- 
moved only  at  an  expense  of  $50. 
It  was  held  that  such  salt  pans  re- 
tained their  character  as  personal 
chattels  as  against  the  subsequent 
purchaser  of  the  realty   who  had 
no  notice  of  the  chattel  mortgage 
other     than     that     constructively 
given  by  the  filing  of  the  chattel 
mortgage     for     record.     Eaves   v. 
Estes,  10  Kan.  314,  arose  between 
the  vendee  of  the  freehold  and  a 
chattel   mortgagee,    the   purchaser 
of  the  freehold  having  no  notice  of 
the  chattel  mortgagee's  lien.     The 
property  mortgaged  was  an  engine 
put  into  and  used  as  motive  power 
in  a   mill.     The  court  say:     "But 
when  we  consider  the  purpose  of 
the  parties  as  evinced  by  the  mort- 
gage to  make  the  engine  retain  the 
character  of   a   chattel   regardless 
of  its  attachment  to  the  mill,  and 
as  the  mortgage  violated  no  prin- 
ciple of  law,  wrought  no  injury  to 
the   rights  of  others,   and  was  in 
the  interest  of  trade,  we  have  no 
doubt  that  the  engine  continued  to 
be    personal    property."     But    see 
Voorhees  v.  McGinnis,  48  N.  Y.  278. 
In  Tifft  V.    Horton,  53   N.  Y.   377, 
2 


the    New   York    court   of    appeals 
held  that  neither  a  prior  nor  sub- 
sequent  mortgagee    of    land     can 
claim,  as  subject  to  the  lien  of  his 
mortgage,    chattels     brought   upon 
and  affixed  to  the  lands  under  an 
agreement   between   the   owner  of 
the  fee  and  the  owner  of  the  chat- 
tels that  the  character  of  the  latter 
as  a  personal  chattel  is  not  to  be 
changed.     Folger,  J.,  in  delivering 
the  opinion    of    the    court,   said: 
"While  there  can  be  no  doubt  that 
the  intention  of  the  owner  of  the 
land  was  that  the  engine  and  boil- 
ers should  ultimately  become  part 
of  the  realty  and  be  permanently 
affixed  to  it,  this  was  subordinate 
to  the  prior  intention  expressed  by 
the  agreement.     That  fully  shows 
her  intention  and  the  intention  of 
the   plaintiff   that   the   act   of  an- 
nexing them  to  the  freehold  should 
not  change  or  take  away  the  char- 
acter of  them  as  chattels  until  the 
price  of  them  had  been  fully  paid; 
and  as  parties  may,  by  their  agree- 
ment expressing  their  intention  so 
to   do,   preserve  and  continue  the 
chattels     as     personal     property, 
there  can  be  no  doubt  but  that,  as 
between  themselves,  the  agreement 
in  this  case  was  fully  sufficient  to 
that   end."    See,   also,    Sheldon   v. 
Edwards,    35   N.    Y.   279;    Shell   v. 
Haywood,  16  Pa.  St.  523.     The  fol- 
lowing cases  also  tend  to  support 
the  doctrine  of  the  text:     Russell 
v.  Richards,  10  Me.  429;  Hensley  v. 
Brodie.    16    Ark.    511;    Crlppen   v. 
Morrison,  13  Mich.  34. 


18  THE    SUBJECT-MATTER. 

This  doctrine  has  been  expressly  controverted,  however,  fn 
other  eases,  where  it  has  been  lield  that,  where  the  articles  in 
question  are  actually  and  firmly  annexed  to  the  freehold  in  as 
permanent  and  substantial  a  manner  as  is  usual  and  as  is 
adapted  to  the  nature  and  objects  of  their  employment,  though 
capable  of  being-  removed  without  injury  to  the  building,  they 
thereby  become,  and  are  presumed  to  be,  a  permanent  acces- 
sion to  the  freehold;  and  that  the  execution  of  a  chattel  mort- 
gage thereon  prior  to  annexation  is  not  sufficient  to  overthrow 
this  presumption  and  raise  the  contrary  one  of  an  intent  to 
preserve  their  personal  character.  Hence,  it  is  contended, 
such  articles,  becoming  a  part  of  the  realty,  will  pass  to  a 
vendee  upon  his  purchase  of  same,  while  the  remedy  of  the 
mortgagees  will  be  against  those  who  wrongfully  converted 
the  personal  into  real  propertyJ^  So,  also,  it  has  been  held 
that,  although  the  parties  concerned  may  make  a  binding 
agreement  that  what  would  otherwise  be  a  fixture  shall  be 
regarded  as  personalty,  such  agreement  will  not  affect  the 
rights  of  a  subsequent  vendee  or  mortgagee  of  the  realty  with- 

70  As  where  K.,  being  the  owner  large  portion  of  the  engine  was 
of  a  mill,  erected  a  substantial  there  being  repaired,  K.  gave  a 
building  adapted  to  contain  ma-  chattel  mortgage  upon  them  to  W., 
chinery;  he  placed  therein  a  steam  and,  after  the  repairs  were  com- 
engine,  boilers,  shafting,  etc.;  the  pleted  and  the  machinery  in  run- 
boilers  were  set  in  brick,  while  the  ning  order,  gave  another  upon 
shafting  and  gearing  were  con-  them  and  other  property  to  M. 
structed  with  special  reference  to  After  the  repairs  and  before  the 
the  place,  were  adapted  to  the  na-  last  chattel  mortgage  he  gave  an- 
ture  and  objects  of  their  employ-  other  real-estate  mortgage  upon 
ment,  and  were  firmly  fastened  to  the  premises.  The  plaintiff  ac- 
the  building,  but  could  be  removed  quired  title  upon  foreclosure  and 
without  injury  to  the  walls.  They  sale  under  the  two  real-estate 
were  put  up  without  special  intent  mortgages.  W.  and  M.  subsequently 
on  the  part  of  K.  either  of  making  removed  the  machinery  covered  by 
them  a  part  of  the  freehold  or  of  the  mortgages.  In  an  action  to 
removing  them  at  a  future  time,  recover  possession,  held,  that  the 
K.  borrowed  the  money  to  make  property  was  part  of  the  freehold 
the  improvements,  giving  a  mort-  and  passed  to  plaintiff  upon  his 
gage  on  the  property.  Soon  after,  purchase.  Voorhees  v.  McGinnis, 
the  old  boilers  were  taken  out  and  48  N.  Y.  278;  and  see  Pierce  v. 
replaced  by  new  ones.  While  the  George,  108  Mass.  78;  Tibbetts  v. 
new  boilers  were  at  the  shop  in  Moore,  23  Cal.  208;  Curry  v. 
process    of    construction,    and    a  Schmidt,  54  Mo.  517. 


THE    PROPERTY.  19 

out  notice  of  it/^  and  that  Ihi'  delivering  and  filing  of  a  chat- 
tel mortgage  upon  the  property  which  is  the  subject  of  the 
agreement  does  not  constitute  the  required  notice.'^- 

The  weight  of  authority  fully  supports  the  rule  last  stated; 
and  it  is  believed  that  the  wisdom  of  such  latter  rule  will  be 
manifest  ujton  careful  investigation,  as  being  more  in  accord- 
ance with  the  policy  of  our  laws  relative  to  notice,  registration, 
etc." 

^  13.  Chattels  left  upon  land.  It  will  hardly  be  eon- 
tended  by  any  one  that  detached  articles,  distinctively  per- 
sonal in  their  nature,  left  upon  realty  by  the  vendor  at  the 
time  of  a  sale,  would,  by  the  conveyance,  pass  to  the  vendee, 
unless  the  articles  were  such  as  had  been  or  were  intended  to 
be  actually  employed  in  connection  with  the  land.  In  this  lat- 
ter event  they  might,  without  doing  violence  to  any  known 
precedent  or  rule  of  law,  be  properl}'  classed  as  fixtures;  as 
where  poles  used  during  the  season  for  supporting  vines  were 
at  the  time  of  sale  piled  up  and  unemployed."^  But  generally 
a  chattel  must  be  actually  or  constructively  affixed  to  the  hind 
to  permit  it  to  pass  by  a  deed  of  the  land  without  special  men- 
tion.'"' 

Hence,  where  wood,  rails,  timber,  stone  or  other  articles  of 
a  strictlj'  personal  nature  are  upon  the  land  at  the  time  of 
sale,  they  will,  notwithstanding,  retain  their  character,  and, 
unless  mentioned  in  special  terms,  will  not  pass  by  the  deed.'^® 
The  rule  alstr  seems  to  be  settled  that  the  title  to  chattel  prop- 
erty lying  upon   land  at  the  time  of  sale,  but  reserved  by 

71  See  Case  Mfg.  Co.   v.  Carver,    752;    Hunt  v.   Iron   Co.   97    Mass. 

13  N.  B.  Rep.  (Ohio)  493;  Ridge-  279;  Trull  v.  Fuller,  28  Me.  545; 
way  Stove  Co.  v.  May,  141  Mass.  Haven  v.  Emery,  33  N.  H.  66; 
557;  and  see  Fortman  v.  Goepper,  Prince  v.  Case,  10  Conn.  375;  Dos- 

14  Ohio  St.  565;  Hopewell  Mills  v.  tal  v.  McCaddon,  35  Iowa,  318; 
Bank,  150  Mass.  519.  Throop's  Appeal,  70  Pa.  St.  395. 

72  On  the  principle  that  an  in-  ^4  Bishop  v.  Bishop,  11  N.  Y.  123. 
strument,  to  afford  constructive  ^r.  Woodman  v.  Pease,  17  N.  H. 
notice  by  registration,  must  appear  282;  Peck  v.  Brown,  5  Nev.  81; 
among  the  records  of  interests  af-  Carpenter  v.  Lewis,  6  Ala.  682; 
fecting  real  estate,  see  Case  Mfg.  Teaff  v.  Hewitt,  1  Ohio  St.  511. 
Co.  v.  Carver,  13  N.  E.  Rep.  (Ohio)  to  Cook  v.  Whiting,  16  111.  480; 
493;  Brennan  v.  Whitaker,  15  Ohio  Woodman  v.  Pease.  17  N.  H.  282; 
St.  446.  Peck  v.  Brown,  5  Nev.  81. 

73  See  Powers  v.  Dennison,  30  Vt. 


20  THE    SUBJECT-MATTER. 

the  vendor  from  the  conveyance,  does  not  become  vested  in  the 
grantee  of  the  hind  by  mere  lapse  of  time  and  neglect  of  the 
grantor  to  remove  it,  however  long  continued.  So  long  as 
the  landowner  merely  suffers  it  to  remain  without  demanding 
a  removal  or  setting  up  any  adverse  claim,  no  title  vests  in  liim 
through  delay.  Even  if  the  delay  amounts  to  an  abandon- 
ment, this  does  not  necessarily  pass  title  to  the  land-owner.'^''' 

§  14.  Aqueducts,  conduits  and  pipes.  The  exigencies  of 
modern  commerce  have  introduced  many  appliances  that, 
from  the  nature  of  their  use  or  the  manner  of  their  construc- 
tion, can  properly  be  classed  only  as  real  property  notwith- 
standing their  apparent  similitude  to  those  things  which 
usually  pass  under  the  name  of  personalty.  The  authorities 
w^hich  tend  to  fix  the  status  of  these  aijpliances  deal  mainly 
with  the  subject  on  questions  raised  under  the  taxing  power 
of  the  state,  but  are  equally  effective  in  declaring  the  rule 
which  shall  apply  between  vendor  and  vendee.  Under  the 
broad  principle  that  ''land"  includes  all  increments,  fixtures 
and  tenements  of  every  kind  connected  therewith  and  all 
rights  thereto  as  well  as  all  interests  therein,  it  has  been  held 
that  conduits  and  pipes  used  to  distribute  water,  gas,  oil,  etc., 
partake  of  the  nature  of  realty  and  are  properly  classed  as 
such. 

While  such  pipes  are  the  property  of  the  owner  of  the  soil  in 
or  upon  which  they  rest,  no  question  will  probably  arise.  In 
such  event  they  may  properly  be  regarded  as  fixtures,  perma- 
nent in  character  and  a  part  of  the  land  which  sustains  them. 
But  where  they  are  constructed  and  operated  by  parties  who 
have  no  title  to  the  soil,  or  at  most  but  a  license  for  their  occu- 
pation, their  classification  becomes  one  of  doubt.  In  England 
it  would  seem  that  such  property  would  be  regarded  as  per- 
sonalty,^^ and  in  this  country  they  have  in  several  instances 
been  classed  as  chattels.''^''  So  far  as  the  subject  has  been  con- 
sidered with  respect  to  the  purposes  of  taxation,  the  general 
tendency  seems  to  be  to  regard  them  as  realty.  As  to  whether 
they  are  to  be  considered  as  appurtenant  to  the  place  of  sup- 

T7  Noble  V.  Sylvester,  42  Vt.  146.  78  Waterworks     v.     Bowley,     17 

In  this  case  a  quantity  of  building  Q.  B.   (Eng.)   358. 

stone  was  left  upon  the  land,  but  79  See,  Commissioners  v.  Gaslight 

a  special  reservation  of  same  was  Co.  12  Allen  (Mass.),  75;  Gaslight 

made  in  the  deed.  Co.  v.  State,  6  Cold.  (Tenn.)  310. 


THE    PROPERTY.  21 

plj,  i.  e.,  reseivoir,  pumping  station,  power  house,  etc.,  there 
is  some  difference  of  opinion.  The  cases  which  so  contend,^'* 
and  yet  chiss  them  as  realty,  seem  to  be  founded  on  a  wrong 
l)rinciple,  as  hind  cannot  be  appurtenant  to  land,  nor  should 
they  be  considered  in  the  same  light  as  house  drains  or  erec- 
tions of  that  character.  While  the  question  is  yet  one  of 
doubt,  particularly  when  applied  to  the  relation  of  vendor  and 
vendee,  the  better  solution  seems  to  be  that  mains,  i^ipes,  con- 
duits, etc.,  in  place,  may  be  considered  real  property  and  sub- 
ject to  the  rules  which  govern  in  this  branch  of  the  law.^^ 

§15.  Submerged  lands.  The  question  as  to  the  owner- 
ship of  soil  covered  by  water,  particularly  in  the  case  of  nav- 
igabh'  lakes  or  rivers,  is  one  which  each  state  its  at  liberty  to 
determine  for  itself  in  accordance  with  its  local  law  and  public 
policy;  and  though,  such  ownership  is  a  right  which  properly 
Ix'longs  to  them  in  tlieir  sovereign  capacity,  they  have,  in 
many  instances,  conceded  it  to  the  riparian  proprietor.  By  the 
civil  law,  the  soil  of  a  navigable  stream  covered  by  water,  as 
well  as  the  use  of  the  stream,  belongs  to  the  public,  while  the 
common  law^  vested  in  the  sovereign,  for  the  public  use,  the 
title  to  the  soil  under  all  waters  where  the  tide  ebbs  and  flows. 
The  doctrine  of  the  common  law,  together  with  its  test  of 
navigability-,  having  been  found  unsuitable  to  the  wants  of  our 
large  and  extensively  watered  country  has,  in  a  majority  of 
the  states,  been  superseded  by  rules  based  upon  the  civil-law 
doctrine.  By  these  rules  the  state  retains,  as  a  prerogative 
right,  the  title  to  the  soil  under  its  navigable  waters,  as  well 
as  the  use  of  these  waters,  w'hich  it  holds  in  a  fiduciary  rela- 
tion for  the  public  use.  This  right  is  usually  jealously 
guarded  by  the  state,  and  private  ownership  upon  navigable 
waters  has  been  rigorously  restricted  to  the  low-water  line;^^ 
yet  courts  of  high  authority  and  undoubted  learning  have  not 
hesitated  to  say  that  land  under  navigable  water  may  be  held 
in  j)rivate  ownership,  subject  to  the  public  rights  of  navigation 

80  See,  Oskaloosa  Water  Co.  v.  2  R.  1.  15 ;  Water  Co.  v.  Lynn,  147 
Board  of  Equalization,  51  N.  W.  Mass.  31;  People  v.  Casslty,  46 
Rep.  18;  Hutchins  v.  Masterson,  46    N.  Y.  46. 

Tex.  534.  ^-  Goodwin  v.  Thompson,  15  Lea 

81  See,  Pipe  Line  Co.  v.  Berry,  (Tenn.),  209;  Lincoln  v.  Davis,  53 
52  N.  J.  L.  308;  Gas  Co.  v.  Thurber,    Mich.  375. 


22  THE    SUBJECT-MATTER. 

and  fishery  ;S3  and  in  many  instances  the  state  has  voluntarily 
surrendered  to  the  riparian  proprietor  all  its  rights  not  incon- 
sistent with  public  navigation. 

Where  the  rule  last  stated  is  permitted  to  obtain,  the  rights 
of  the  riparian  owner,  in  the  case  of  rivers,  are  regarded  as 
extending  to  the  center  or  thread  of  the  stream,^*  ad  filum 
aqua;  and  the  same  rule  would  doubtless  apply  in  the  case  of 
lakes  and  ponds  of  circumscribed  area  and  regular  shore 
lines.^^ 

But  while  the  rule  is  unquestioned  that  grants  which  bound 
upon  a  river  or  stream  extend  to  the  center  line,  provided 
there  be  no  limitation  in  the  terras  of  the  grant  itself,  it  is 
equally  well  settled  that  the  principle  does  not  apply  to  grants 
bounding  on  the  great  inland  lakes  or  other  large  bodies  of 
standing  fresh  water.  In  this  respect  a  new  rule  of  law  has 
been  enunciated,  differing  radically  from  that  laid  down  by 
the  common  law.  In  England,  where  the  common  law  had  its 
origin,  there  were  no  great  inland  seas,  and  consequently  no 
precedent  can  be  found  in  the  jurisprudence  of  that  country 
which  determines  the  applicability  of  the  common-law  doc- 
trine of  riparian  rights  to  questions  of  this  character.  A 
slight  analogy  will  be  found  in  the  resemblance  of  the  great 
lakes  to  the  seas  which  surround  the  island  of  Great  Britain; 
and  it  has  been  said  that  this  would  seem  to  call  for  the  appli- 
cation of  the  same  principles  as  to  boundaries  w^hich  were 
applied  to  lands  bordering  on  those  seas,  with  this  difference : 

83  Hogg  V.  Beeman,  41  Ohio  St.  precision,  says:  "But  if  the  water 
81.  This  case  referred  to  one  of  continues  so  shallow  as  to  render 
the  navigable  bays  of  Lake  Erie,  the  lands  under  it  susceptible  of 
where  the  soil  was  claimed  under  beneficial  private  use  to  the  center 
a  grant  made  or  sanctioned  by  the  line  of  the  narrow  lake,  then  I 
general  government.  have  no  hesitation  in  saying  that 

84  Rice  V.  Monroe,  36  Me.  309;  I  think  the  riparian  ownership  ex- 
Luce  V.  Carnley,  24  Wend.  (N.  Y.)  tends  to  such  center  line.  If  the 
451;  State  v.  Canterbury,  28  N.  H.  water  becomes  so  deep  as  to  render 
195;  Cox  V.  Freedley,  33  Pa.  St.  the  lands  under  It  incapable  of 
124.  such   individual  use,  the  question 

85  In  Rice  v.  Rudiman,  10  Mich,  of  ownership  beyond  where  it  is 
139,  in  speaking  of  Lake  Muskegon,  available  for  s  jch  purpose  becomes 
the  court,  after  stating  that  the  as  barren  as  the  use  itself,  and  is 
real  question  is  not  whether  the  of  no  practical  importance  what- 
outward   limits  of  private  owner-  ever." 

ship  in  the  lake  can  be  defined  with 


THE    PROPERTY.  23 

as  there  is  no  periodical  ebb  and  (low  of  tide  in  llic  walcrs  of 
the  lakes,  tlie  limit  should  be  a  low-water  instead  of  lilj^h- 
vvatcr  mark.'**' 

Where  the  ruh'  i)r('vails  that  the  title  of  a  riparian  owner 
on  a  na\ijiable  stream  is  bounded  by  oi'dinary  hij^h- water 
mark,  while  he  still  has  certain  riy,hts  in  the  land  between 
high  and  low-water  mark,  yet  these  rights  are  peculiar  to 
himself,  and  cannot  be  sold  or  transfei'red  by  him  indei)end- 
ently  of  a  conveyance  of  the  land  to  which  they  are  appur- 
tenant.^^ On  the  other  hand,  where  the  right  of  a  rii)arian 
proprietor  u])on  navigable  waters  to  imi)rove  and  reclaim 
submerged  lauds  to  the  point  of  navigability  is  recognized,  it 
would  seem  that  notwithstanding  this  right  was  originally 
incident  to  the  riparian  estate  it  may  yet  be  separated  there- 
from and  transferred  to  another.^'"* 

§  16.  Water.  It  has  been  said  to  be  vitally  essential  to 
the  public  peace  and  to  individual  security  that  there  should 
be  distinct  and  acknowledged  legal  owners  for  both  the  land 
and  water  of  the  country,^''  and  that  property  in  w  ater,  and  in 
the  use  and  enjoyment  of  it,  is  as  sacred  as  in  the  soil  over 
which  it  Hows."''  But  water,  from  its  peculiar  nature,  is  not 
susceptible  of  the  same  use  or  possession  as  land,  and  prop- 
erty therein  is  at  best  a  mere  usufructuary  right;  and  in  every 
case,  where  of  snliicient  volume  and  dej)th,  such  right  is  sub- 
servient to  the  public  right  of  navigation.  If  the  water  is  not 
navigable  it  is,  for  all  practical  purposes,  the  property  of  the 
owner  of  the  subjacent  soil;  and  in  any  event  he  is  entitled  to 
every  beneficial  use  of  the  same  w^hich  can  be  exercised  with  a 
due  regard  for  the  rights  of  the  public."^ 

In  the  case  of  running  water  the  riparian  proprietor  has  a 
right  to  the  use  and  enjoyment  of  it  and  the  benefits  to  be 

80  Lincoln  V.  Davis,  53  Mich.  375.  ker    v.    Bates,    13    Pick.     (Mass.) 

The    subject    will    receive    further  255;    Pike  v.   Munroe,  36   Me.  309. 

consideration    in    treating    of    the  **»  Gavitt    v.    Chambers,    3    Ohio, 

construction  of  grants.  497. 

«7  Steele  v.  Sanchez,  72  Iowa,  65;  »o  Lorman  v.  Benson,  8  Mich.  32; 

Musser  v.  Hershey,  42  Iowa,  356;  Wadsworth  v.  Tillotson,  15   Conn. 

Phillips  V.  Rhodes.  7  Met.  322.  366. 

sn  Hanford  v.  Ry.  Co.,  44  N.  W.  oi  Gary  v.  Daniels,  5  Met.  (Mass.) 

Rep.  (Minn.)   1144;  Gilbert  v.  Em-  236. 
erson,  55  Minn.  254,  and  see,.  Bar- 


24  THE    SUBJECT-MATTER. 

derived  from  it  as  it  flows  tln'oii<;li  his  own  land;  but,  as  this 
right  is  common  to  all  throii<j;h  whose  land  it  flows,  it  follows 
that  no  one  can  wholly  destroy  or  divert  it  so  as  to  prevent 
it  from  passing  to  the  property  below,  or  wholly  obstruct  it  so 
as  to  throw  it  back  upon  the  land  of  the  one  above.''- 
.  In  the  case  of  standing  water,  as  well  as  water  percolating 
through  the  soil,  while  absolute  ownership,  in  the  strict  sense 
of  the  term,  is  of  course  impracticable,  yet  the  right  of  prop- 
erty, so  far  as  the  element  is  capable  of  beneficial  use,  is  com- 
plete in  the  owner  of  the  freehold,  free  from  any  usufructuary 
rights  in  others.-'^ 

But  while  property  in  water  can  be  regarded  in  no  higher 
light  than  a  mere  usufructuary  right,  such  right  is,  neverthe- 
less, a  proper  and  valid  subject  of  sale  and  conveyance,  and 
may  be  disposed  of  quite  independently  of  the  soil  upon  which 
the  water  rests  or  over  which  it  flows.'-'^  This  is  one  of  the 
oldest  and  best-recognized  principles  of  the  law  relating  to 
waters,  finding  frequent  reference  in  the  ancient  books  in 
connection  with  grants  of  a  ''pool,"  a  "gulph,"  as  well  as  of  a 
"stream"  and  "part  of  a  river."^^  A  grant  of  a  stream  or  any 
part  thereof,  or  of  any  waters  by  fixed  boundaries,  can  only 
be  made  by  a  deed  duly  executed  ;'^^  yet  such  grant  may  be 
presumed,  as  in  other  cases,  from  adverse  occupation  and  user 
for  twenty  years.'^'^ 

By  the  civil  law  in  a  grant  of  any  easement  or  service,  under 
which  was  classed  the  use  of  streams  of  water,  a  right  to  the 
soil  passed,  so  far  as  was  necessary  to  the  enjoyment  of  the 

82  The  right  to  the  use  of  flowing  (Mass.)    466;    Hill   v.   Newman,   5 

water  is  not  an  easement;  it  is  in-  Cal.  445;   Van  Sickle  v.  Haines.  7 

separably  connected  with  and   in-  Nev.  249;   Wadsworth  v.  Tillotso.; 

herent  in  the  land  and  passes  with  15   Conn.  366. 

it.     The  right  to  have  it  flow  over  03  Hanson  v.  McCue,  42  Cal.  303 

the  land  of  another  is  more  in  the  Wilson  v.  New  Bedford,  108  Mass. 

nature   of  an   easement,   although  261. 

not    strictly    such    in     fact;     and  o*  Avon  Mfg.  Co.  v.  Andrews,  30 

where  a  proprietor  of  a  large  tract  Conn.  476;    Bobo  v.  Wolf,  18  Ohio 

through     which     a     water-course  St.  463;  Hines  v.  Robinson,  57  Me. 

passes  sells  parcels  above  and  be-  324. 

low  the  part  he  retains,  each  gran-  os  Co.  Lit.  5  a,  b;   Plowd.   Com. 

tee  would  take  his  parcel  with  full  154;    Bac.   Ah.    Grant.    H.;    2   Blk. 

rights  and  subject  to  corresponding  Com.  19. 

duties,  without  special   or  express  o«  Bullen  v.  Runnels,  2  N.  H.  255. 

words.      Cary   v.    Daniels,    8    Met.  o7  Bucklin    v.    Truell,    54    N.    H. 


THE    PROPERTY.  25 

service;^*^  and  the  same  niU',  substantiallj,  seems  to  have 
been  adopted  by  the  common  law,'*"  although  no  interest  in 
the  soil  for  any  other  purpose  would  pass;  but  ordinarily  a 
grant  of  water  will  not  pass  the  soil  beneath,  x>robably 
because  the  soil,  not  being  named  and  not  being  incident  to 
water,  cannot  be  considered  as  embraced  by  that  word.^ 

By  the  laws  of  some  of  the  western  states,  ditches  for  min- 
ing and  irrigation  purposes  are  declared  real  propeii:^',  and 
the  laws  of  these  states  relative  to  the  sale  and  transfer  of 
land  are  made  applicable  thereto.- 

§  17.  Ice.  While  ice  is  only  water  in  a  congealed  state,  it 
nevertheless  luiHakes  largely  of  the  general  characteristics  of 
land,  and  is  capable  of  an  ownership  not  unlike  that  by  which 
land  is  held.  It  has  been  held  to  be  connected  with,  and  in 
the  nature  of,  an  accession  to  the  land,  being  an  increment 
arising  from  formations  over  it,  and  belonging  to  the  land 
properly,  as  being  included  in  it,  in  its  indefinite  extent 
upwards  j-"^  and  such,  no  doubt,  must  be  the  character  accorded 
to  it  so  long  as  it  remains  in  place  upon  the  soil.*  In  this 
condition  it  would  certainly  pass  as  a  portion  of  the  realty 
upon  a  sale  of  the  land  to  which  it  is  attached. 

The  general  rules  which  govern  riparian  proprietors  in  the 
use  and  enjoyment  of  water  apply  with,  practically  the  same 
force  and  effect  in  respect  to  ice.  That  is,  if  the  policy  of  the 
state  permits  ownership  beyond  the  bank  of  a  navigable  water 
way  the  ice  which  forms  upon  the  stream  contiguous  to  his 
land  will  be  the  property  of  the  adjacent  land  owner  ;^  if,  on 
•the  other  hand,  the  local  public  policy  restricts  ownership  to 
the  shore  instead  of  the  thread  of  the  stream,  then  the  ice 

122;     White    v.    Chapin,    12    Allen  registration,      probably      it     does. 

(Mass.),  516;    Steffy  v.  Carpenter,  Gest    v.    Packwood    (U.    S.    C.    Ct. 

37  Vt.  41.  Oreg.  1888). 

9«  Domat,  b.  1,  tit.  1,  sec.  1 ;  Rrac-  •»  Washington  Ice  Co.  v.  Shortall, 

ton.  b.  4.  101.  111.  46;   State  v.  Pottmeyer,  33 

99  1  Burr.  143;  22  Edw.  IV.  pi.  8,  Ind.  402. 

p.  24.  4  Hydraulic  Co.  v.  Butler.  91  Ind. 

12  Bl.   Com.   19.  134;   Woolen  Mill  Co.  v.  Smith,  34 

2  Whether  this  includes  the  reg-  Conn.   462;    Lorman   v.   Benson.   8 

istration  of  deeds  or  conveyances  Mich.  18;  Brown  v.  Brown,  30  N.  Y. 

of    such    ditches    may    be    a    ques-  519;    Brooklyn   v.    Smith,    104    111. 

tion;  but,  as  the  effect  or  operation  429;  Pine  v.  Woods,  108  Mass.  160. 

thereof  depends  to  some  extent  on  ''>  Washington  Ice  Co.  v.  Shortall, 


26  THE    SUBJECT-MATTER. 

which  forms  theroou  would  undoubtedly  be  public  i^roperty 
which  might  be  made  the  subject  of  private  ownership  by 
simple  appropriation.*^ 

Ice  has  not  been  much  dealt  with  as  property,  however, 
until  very  modern  times,  and  for  this  reason  no  settled  body 
of  legal  rules  has  been  agreed  upon  concerning  it.  In  the 
determination  of  questions  which  have  arisen  in  regard  to 
it,  recourse  has  usually  been  had  to  common-law  principles; 
yet  these  principles,  in  the  main,  are  not  strictly  applicable. 
So  far  as  the  principles  of  the  common  law  go,  they  have 
usually  if  not  universally  treated  nothing  movable  as  realty 
unless  either  permanently  or  organically  connected  with  the 
land;  while  the  tendency  of  modem  authority,  especially  in 
regard  to  fixtures,  has  been  to  treat  such  property  according 
to  its  purposes  and  uses  as  far  as  possible.  In  its  essentials, 
ice  is  only  the  product  of  water  which  has  become  fixed  by 
freezing;  in  this  condition  it  draws  nothing  from  the  land, 
and  if  removed  will  lose  its  identity  by  melting.  It  has  no 
organic  connection  with  the  land,  and  if  severed  can  only  be 
joined  to  it  again  by  the  alternate  process  of  melting  and 
freezing.  It  is,  in  many  cases,  liable  to  disruption  and  con- 
sequent loss  to  the  freeholder  by  being  swept  away,  while 
its  ephemeral  character  renders  it-incapable  of  any  pennanent 
beneficial  use  as  part  of  the  soil,  and  it  attains  its  greatest 
value  onl}^  when  removed  from  its  original  position.  Kegard- 
ing  it,  therefore,  in  this  light,  and  with  reference  to  its  uses 
in  fact  as  a  commercial  commodity,  while  it  may  for  many 
purposes  justly  be  regarded  as  part  of  the  realty  when  resting 
in  place,  yet  a  sale  of  ice  already  formed,  as  a  distinct  and 
specific  article,  may  properly  be  regarded  as  a  sale  of  per- 
sonalty, whether  in  or  out  of  the  water.''^ 

§  18.     Oils  and  gases.    Earth  oils  and  volatile  gases  occupy 

101  111.  46;  Brooklyn  v.  Smith,  104  authority  upon  the  question  of  the 

111.    429;     State    v.    Pottemyer,    33  validity    of    contracts    for    future 

Ind.  432.  uses   or   interests    in    ice   not   yet 

6  Wood  V.  Fowler,  36  Kan.  682;  formed;  and  whether  such  deal- 
Woodman  V.  Pittman,  76  Me.  456.  ings  are  to  be  regarded  as  leases 

T  Higgins  v.  Kusterer,   41  Mich,  or    licenses,    or    executory    sales, 

318;  and  see  Washington  Ice  Co.  v.  may  still  be  considered  as  an  open 

Shortall,   101    111.   46.     The  writer  question, 
has  been  unable  to  find  any  direct 


THE    PROPERTY.  27 

miu'li  the  same  positiou  in  the  hiw  of  real  property  as  water. 
They  are  usually  classed  as  minerals,  possessing,  in  some 
de.uree,  a  kindred  nature.  They  are  fully  included  in  the 
comprehensive  term  "land,"  and  ai-e  a  part  of  the  soil  in 
which,  they  are  found  so  long  as  they  remain  in  place.**  Being 
thus  regarded  as  land  it  follows  that  they  may  be  made  the 
subject  of  special  agreements  and  sold  separate  from  the  soil 
in  which  they  are  confined.  They  possess,  however,  substan- 
tially the  same  general  attributes  as  water,  and  therefore 
cannot  be,  in  any  just  sense  of  the  term,  the  subject  of  a 
grant  as  of  a  cori)oreal  interest.  In  this  respect  they  differ 
materially  from  coal,  ores,  etc.  At  best,  the  grant  of  oils  or 
gases,  or  of  the  right  to  sink  shafts  and  extract  same,  is  a 
license,  and  is  governed  by  the  rules  which  apply  to  licenses.^ 
T^nllke  otJier  minerals  they  have  the  power  as  well  as  the 
tendency  to  escape  without  the  volition  of  the  owner  and 
when  this  occurs  the  title  is  lost.'° 

§  19.  Church  pews.  Inclosed  seats  in  churches  do  not 
appear  to  have  been  known,  according  to  the  modern  use  and 
idea,  until  long  after  the  Reformation,  and  were  not  in  gen- 
eral use  until  about  the  middle  of  the  seventeenth  century. 
Prior  to  that  time  no  separate  seats  were  allowed  except  in 
a  few  instances,  and  the  body  of  the  church  was  common  to 
all.  They  constitute  a  subject  of  very  peculiar  ownership, 
and  have  given  rise  to  some  very  remarkable  decisions. 
According  to  the  English  idea  the  interest  of  a  pew-holder 
is  of  an  incorporeal  nature  only — an  easement,  as  it  were — 
and  consists  mainly  of  the  right  to  enter  and  occupy  during 
the  celebration  of  divine  service.  In  this  country,  in  the 
absence  of  a  statute  declaring  their  status,  they  are  generally 
considered  as  partaking  of  the  nature  of  realty ;^^  and  the 
owner  has  been  held  to  have  an  exclusive  right  of  possession 

sGerkins    v.    Salt    Co..    100    Ky.  Vt.  593;  Barnard  v.  Whipple,  29  Vt. 

734;  Peoples'  Gas  Co.  v.  Tyner,  131  401;  Sohier  v.  Trinity  Church.  109 

Ind.  277;    Williamson  v.  Jones,  43  Mass.   1;    Bnimfleld   v.   Carson,   33 

W.  Va.  562.  Ind.    94;    Presbyterian    Church    v. 

9  Dark   v.   Johnston,    55    Pa.    St.  Andruss,  21  N.  J.  L.  325;   and  see 

164.  Church   v.    Wells.    24    Pa.   St.   249; 

JO  Westmoreland   Gas  Co.  v.  De  Price  v.  Lyon,  14  Conn.  279;  Third 

Witt,  130  Pa.  St.  235.  Presby.  Church  v.  Andrus.  21  N. 

iiO'Hear   v.   De   Goesbriand,   33  J.  L.  325. 


28  THE    SUBJECT-MATTER. 

and  enjojmeut,  for  the  purposes  of  public  worship,  not  as  an 
easement,  but  by  virtue  of  an  individual  rifiht  of  property.^^ 
This  right,  however,  even  though  it  be  regarded  as  an  interest 
in  realty,  does  not  extend  to  the  fee,^"*  and  for  all  practical 
purposes  is  usufructuary  only.^^  Though  it  be  not  an  ease- 
ment in  name,  it  is  such  in  reality  ;^'5  for  as  between  the  pew- 
owner  and  the  church  corporation,  his  right  is  simply  one  of 
occupancy,  in  the  mode  prescribed  by  the  rules  of  the  church 
or  agreed  upon  at  the  time  of  the  purchase.^ ^  It  has  been  held 
that  the  right  to  a  pew  can  only  be  transferred  in  the  manner 
provided  for  the  transfer  of  real  property  ;^'^  and  where  the 
rights  conferred  are  absolute  and  the  entire  property  vested 
in  the  pew-owner,  such  would  undoubtedly  be  the  rule;  yet, 
as  a  matter  of  fact,  the  old  system  of  pew  conve3'ances  has 
almost  become  obsolete.  Deeds  are  no  longer  given  in  the 
majority  of  churches,  and  the  sittings  are  let  by  what  amounts 
to  nothing  more  than  a  mere  license,  differing  in  no  essential 
particular  from  that  employed  in  the  sale  of  seats  in  places 
of  public  amusement. 

It  would  seem  also,  that  even  when  pews  are  regarded  as 
realty,  and  as  such  subject  to  the  incidents  of  realty,  yet  the 
rights  of  the  pew  holder  are  very  limited  in  their  scope  and 
do  not  extend  to  confer  a  legal  interest  in  the  church  edifice 
or  the  materials  of  which  it  is  composed,  nor  to  the  land  on 
which  it  stands.^ ^  Such  interest  is  further  limited  in  point 
of  time,  and  if  the  building  is  burned  or  falls  into  decay  which 
renders  it  useless  the  right  of  the  pew  holder  is  lost.^^ 

§  20.     Burial  lots.     As  a  rule  the  purchaser  of  a  cemetery 

12  O'Hear  v.   De   Goesbriand,    33  Me.  245;  Sohier  v.  Trinity  Church, 

Vt.  593;  Church  v.  Andruss,  21  N.  109  Mass.  1. 

J.  L.  325.  1"  Barnard    v.    Whipple,    29    Vt. 

i'^  Gay  V.   Baker,   17   Mass.   435;  401;    and   see   Vielie  v.   Osgood,   8 

Baptist   Society    v.    Grant,    59    Me.  Barb.    (N.   Y.)    130;    Brumfield    v. 

245;    Kincaid's  Appeal,   66   Pa.   St.  Carson,   33  Ind.  94;    Livingston  v. 

411.  Trinity  Church,  45   N.   J.   L.   237; 

1^  Craig  V.  Presbyterian  Church,  Price  v.  Lyon,  14  Conn.  279. 

88    Pa.    St.   42;    Gay   v.    Baker,    17  is  Gay  v.    Baker,    17   Mass.    435; 

Mass.  435.  Matter  of  Reformed  Dutch  Church, 

in  Union  House  v.  Rowell,  66  Me.  16  Barb.    (N.  Y.)    237. 

400;    Van    Houten    v.    Ref.    Dutch  lo  Freligh   v.    Piatt,   5    Cow    (N. 

Church,  17  N.  J.  Eq.  126.  Y.)      494;      Voorhees     v.     Presby. 

16  Baptist   Society   v.    Grant,    59  Church,  17  Barb.  (N.  Y.)  108. 


THE    PROPERTY.  29 

lot  takes  no  title  to  the  soil.  The  grant  is  in  the  nature  of 
a  license  or  privilege  to  make  interments  in  the  plot  described, 
exclusive  of  others,  so  long  as  the  ground  shall  remain  in  such 
use.'^  Such  right  is,  however,  real  property.  It  may  be 
sold  and  transferred  to  others,  if  nothing  in  the  grant  pre- 
vents, and  is  to  be  treated  generally  as  an  incorporeal  here- 
ditament. 

§  21.  Appurtenances.  Land  is  ordinarily  conveyed  together 
with  the  hereditaments  and  appurtenances  thereunto  belong- 
ing. An  appurtenance  is  described  in  general  tenns  as  some- 
thing belonging  to  another  thing  as  principal,  and  which 
passes  as  an  incident  to  such  principal  thing.^i  Thus,  in  a 
grant  of  lands,  everything  passes  which  is  necessary  to  the 
full  enjoyment  thereof  and  which  is  in  use  as  incident  or 
appurtenant  thereto.  But  land  is  never  appurtenant  to  land.-- 
nor  will  the  term  carry  with  it  any  rights  or  interests  in  the 
property  of  the  grantor  on  other  lands  which  he  owns,^^ 
neither  can  it  be  made  to  include  anything  not  situate  on  the 
laud  described  in  the  deed,  even  though  it  belongs  to  the 
grantor  and  is  used  by  him  in  his  business.-^  It  is  designed 
only  to  pass  rights  and  privileges  of  an  incorporeal  character, 
and  of  these  only  such  as  are  directly  necessary  to  the  proper 
enjoyment  of  the  granted  estate. 

§  22.  Easements.  An  easement  is  generall}'^  defined  as  a 
right  in  the  owner  of  one  parcel  of  land,  by  reason  of  such 
ownership,  to  use  the  land  of  anotlier  for  a  special  purpose 
not  inconsistent  with  a  general  property  in  the  owner  i-'^  and 
it  may  still  further  be  defined  as  an  incorj)oreal  right  existing 
in  favor  of,  and  imposed  upon,  corporeal  i)roperty.  The  con- 
verse of  an  easement  is  denominated  a  serviture.  The  land 
to  which  the  privilege  is  attached  is  called  the  dominant 
estate,  and  that  against  which  it  exists  the  servient  estate; 

20  Kincaid's  Appeal,  66  Pa.  St.  ■-•"•  2  Wash.  Real  Prop.  25.  In  the 
411;  Rayner  v.  Nugent,  60  Md.  515.  old  books  it  is  defined  as  a  priv- 

21  Bouv.  Law  Diet.  136.  ilege  which  the  owner  of  one  ad- 

22  Grant  v.  Chase,  17  Mass.  443 ;  jacent  tenement  hath  of  another, 
Leonard  v.  White,  7  Mass.  6;  Bar-  existing  in  respect  to  their  several 
rett  V.  Bell,  82  Mo.  110.  tenements,   by   which    that   owner 

23  Frey  v.  Drahos,  6  Neb.  1 ;  Og-  against  whose  tenement  the  priv- 
den  V.  Jennings,  60  N.  Y.  526.  ilege  exists  is  obliged  to  suffer  or 

24  Frey  v.  Drahos,  6  Neb.  1.  not  to  do  something  on  or  in  re- 


30  THE    SUBJECT-MATTER. 

and  as  these  rights  are  not  usually  personal,  and  do  not 
change  with  the  persons  who  may  own  the  respective  estates, 
it  is  very  common  to  personify  the  estates  as  themselves  own- 
ing or  enjoying  the  easements. 

An  easement  is  technically  created  only  by  a  grant  or  con- 
firmation; but  such  grant  may  be  implied  when  the  existence 
of  the  easement  is  necessary  to  the  enjoyment  of  that  which 
is  expressly  granted  or  reserved,  upon  the  principle  that  where 
one  grants  anything  to  another  he  thereby  grants  to  him  the 
means  of  enjoying  it,  whether  expressed  or  not;-^  and  in 
pursuance  of  this  principle  the  general  rule  is  that,  in  every 
deed  of  a  part  of  the  grantor's  land  without  express  provision 
on  the  subject,  there  is  an  implied  grant  or  reservation  of  all 
easements  of  necessity  for  the  enjoyment  of  the  part  con- 
veyed or  the  part  retained.^'^  Generally,  however,  the  rule 
which  creates  an  easement,  without  an  express  reservation, 
upon  the  severance  of  two  tenements  or  heritages  by  the  sale 
of  one  of  them,  is  confined  to  cases  where  some  apparent  sign 
of  servitude  on  the  part  of  one  in  favor  of  the  other  then 
exists  which  would  indicate  itself  to  one  reasonably  familiar 
with  the  subject,  upon  an  inspection  of  the  premises.^^ 

An  easement  may  also  be  established  by  prescriptive  user 
from  which  a  grant  is  inferred;  but,  in  respect  to  the  acqui- 
sition of  easements  in  this  manner,  no  universal  rule  of  law 
as  to  the  effect  in  evidence  of  particular  facts  can  be  laid 
down.  Whether  long-continued  use  of  an  easement  is  adverse 
or  is  in  subordination  to  the  title  of  the  true  owner  is  a 
matter  of  fact,  to  be  decided,  like  other  facts,  upon  the  evi- 
dence and  upon  the  circumstances  of  each  particular  case.^^ 
Where  an  easement  is  established  by  prescription  or  inferred 
from  user  it  is  limited  to  the  actual  user,^^ 

Easements  are  classed  as  appurtenant  or  in  gross;  but  so 
far  as  their  capacity  for  independent  alienation  is  concerned 
the  classification  is   immaterial.     Whether  an   easement  is 

gard  to  his  own  land  for  the  ad-  ^s  Butterworth    v.    Crawford,    46 

vantage  of  him  in  whose  land  the  N.  Y.  349;    Providence  Tool  Co.  v. 

privilege  exists.     Termes  de  la  ley,  Corliss  Co.  9  R.  1.  564. 

Easements;    Bouv.  Law  Diet.  -'••Bradley's  Fish  Co.  v.  Dudley, 

-'«  Lanier  v.  Booth,  50  Miss.  410.  37  Conn.  136. 

27  Dillman   v.   Hoffman,   38   "Wis.  ^'o  Brooks  v.  Curtis,  4  Lans.   (N. 

559.  Y.)    283. 


THE   PROPERTY.  31 

appurtenant  or  appendant  to  an  estate  in  fee  in  lands,  or  in 
gross,  to  the  person  of  the  grantee  for  life  or  for  years,  it  is 
equally  incapable  of  alienation  or  conveyance  in  fee.  When 
in  gross  it  is  purely  personal  to  the  holder  and  cannot  be 
assigned,  nor  will  it  pass  by  descent;  when  appurtenant  it  is 
attached  to,  or  incident  to,  the  land  and  jiasses  with  it, 
whether  the  land  be  conveyed  for  a  temi  of  years,  for  life  or 
in  fee.  Being  an  incident  to  the  land,  it  cannot  be  separated 
from  or  transferred  independent  of  the  land  to  which  it 
inheres.^' 

§  23.  License.  In  the  common  law  the  word  "license"  is 
of  early,  constant  and  well-defined  use,  as  applied  to  the  con- 
cession of  certain  rights  by  the  owners  of  land  to  a  third 
party.  In  this  relation  it  imparts  to  the  licensee  rights  resem- 
bling, though  not  identical  with,  an  easement.  It  is  generally 
defined  as  an  authority  to  do  some  one  act  or  series  of  acts 
on  the  land  of  another  without  passing  any  estate  in  the 
land;^-  and  the  right  or  property  thus  conferred  is  of  that 
class  denominated  incorporeal  hereditaments.  A  license  may 
be  created  by  parol;  but  if  it  constitutes  a  permanent  right 
or  confers  an}'  interest  in  the  land  must  be  by  grant,^^  and 
when  such -license  is  coupled  with  an  interest  by  reason  of 
the  paj'mcnt  of  price  or  other  act,  it  has  been  held  that  the 
authority  conferred  is  not  a  mere  permission,  but  amounts  to 
a  grant  which  obliges  the  grantor  and  vests  legal  property 
in  the  grantee.^"* 

Licenses  which,  in  their  nature,  amount  to  the  granting  of 
an  estate,  though  for  ever  so  short  a  time,  are  considered  as 
leases.2^ 

A  license,  being  a  mere  privilege  founded  in  personal  confi- 
dence, ceases  with  the  death  of  either  party,  or  with  a  sale 

•■ii  Wash.  Easements,  10;  Koelle  V.  nances,'    without    being    expressly 

Knecht,  99  111.  496.     "They  are  in  named." 

the   nature    of   covenants    running  •''-•Cook  v.  Stearns,  11  Mass.  536; 

with  the  land,"  says  the  court  in  Mumford    v.    Whitney.    15    Wend. 

Garrison  v.  Rudd,  19  111.  558,  "and,  (N.  Y.)   390. 

like  them,  must  respect  the  thing  •'•'Chute   v.    Carr,   20   Wis.    531; 

granted  or  demised,  and  must  con-  Cook  v.  Stearns.  11  Mass.  536. 

cern  the  land  or  estate  conveyed.  •'<*  Rerick    v.    Kern,    14    S.   &   R. 

They  pass  by  a  conveyance  of  the  (Pa.)  267;  Metcalf  v.  Hart.  3  Wyo. 

land,    under    the    term    'appurte-  513. 

35  Cook  V.  Stearns,  11  Mass.  536. 


32  THE    SUBJECT-MATTER. 

or  conveyance  of  the  land/'"  and  cannot  be  transferred  or 
alienated  by  the  Hcensee,^'^  and,  if  executory,  is  revocable  at 
an}'  time  at  the  pleasure  of  the  grantor."'^ 

When  executed,  in  whole  or  in  part,  the  question  of  revo- 
cation is  one  of  great  diflSculty  to  properly  determine  and 
respecting  which  courts  of  the  highest  standing  have  arrived 
at  widely  ditlering  conclusions.  The  better  doctrine  would 
seem  to  be  that  when  the  licensee  has  made  valuable  improve- 
ments or  expended  money  in  consequence  of  the  extension  of 
the  privilege  it  then  becomes  irrevocable  so  far  as  such  revo- 
cation may  injuriously  affect  him,^^  and  usually  courts  of 
equity  will  not  permit  the  revocation  of  a  license  when  it  has 
been  given  to  influence  the  conduct  of  another  and  has  caused 
him  to  make  large  investments.'^^ 

A  license  operates  as  a  protection  for  any  act  done  under 
it  while  in  force,  but  after  revocation  the  licensee  will  become 
a  trespasser  and  as  such  may  be  evicted  by  the  land  owner. 
A  sale  and  conveyance  of  the  land  will  itself  amount  to  a 
revocation  of  a  previous  license  and  the  purchaser  may  imme- 
diately bring  his  action  to  recover  possession.^^ 

The  main  difference  between  an  easement  and  a  license  lies 
in  the  fact  that  the  former  must  arise  in  grant,  while  the 
latter,  conveying  no  estate  or  interest  in  the  land,  may  rest 
in  parol;  yet  the  distinction  is  very  subtle,  and  it  becomes 
difficult  in  many  cases  to  discern  a  substantial  difference 
between  them.*^ 

§  24,  Franchises.  A  franchise,  in  its  original  form,  was  a 
royal  privilege  or  prerogative  of  the  king,  subsisting  in  the 
subject  by  a  grant  from  the  crown;  and,  except  that  the  grant 
comes  from  the  people  in  their  sovereign  capacity,  the  general 

36  Hodgkins    v.    Parrington,    150  126;  Baldock  v.  Atwood,  21  Or.  73. 

Mass.    19;    Kremer   v.   Ry.   Co.   51  4o  Curtis  v.   Water   Co.,   20   Org. 

Minn.  15.  34;    Thomas  v.   Irrigation   Co.,   80 

3T  Johnson  v.  Babcock,  4  Johns.  Tex.  550. 

(N.   Y.)    418;    Prince   v.    Case,    10  4i  Kremer   v.   Ry.   Co.,   51   Minn. 

Conn.   375;    Dark   v.   Johnston,   55  15;  Eggleston  v.  R.  R.  Co.,  35  Barb. 

Pa.     St.    164;     but    see,    Keystone  (N.   Y.)    162;    and   see,   Galway  v. 

Lumber  Co.  V.  Kolman,  94  Wis.  465.  Ry.  Co.,  128  N.  Y.   132;    Lamm  v. 

38  De   Haro   v.    United    States,    5  Ry.  Co.,  45  Minn.  73. 

Wall.     (U.    S.)     599;     Mumford    v.  ^2  Mumford  v.  Whitney,  15  Wend. 

Whitney,  15  Wend.   (N.  Y.)  380.  (N.  Y.)  380;  Thompson  v.  Gregory, 

38  Flicicinger    v.    Shaw,    87    Cal,  4  Johns.   (N.  Y.)   81. 


THE    PROPERTY. 


33 


foaturcs  have  not  been  clianj^ed  in  this  country.  In  the  law 
of  real  property  the  term  is  ordinarily  applied  to  grants  for 
the  maintenance  of  bridges,  ways  and  ferries,*^ 

The  grant  of  a  franchise  creates  a  vested  property  right, 
and,  unless  expressly  restricted  to  the  person  of  the  grantee 
as  an  individual  privilege,  is  alienable  in  the  same  manner  as 
other  fomis  of  real  property.-** 

§  25.  Property  in  adverse  seizin  of  a  third  person.  ''From 
an  early  dale,"  observes  Mr.  Washburn,^"'  "the  policy  of  the 
law  has  not  admitted  of  the  conveyance  by  any  one  of  a  title 
to  land  which  is  in  the  adverse  seizin  and  possession  of 
another;"  and  this  has  always  been  one  of  the  fundamental 
principles  of  the  common  law.*^  As  such,  it  has  been  recog- 
nized and  enfoi'ced  in  all  of  the  older  states  of  the  Union,  and 
deeds  made  under  those  circumstances  have  in  many  instances 
been  declared  void.^^  Such  deeds  were  considered  as  passing 
no  title,  but  simply  as  the  transfer  of  a  mere  right  of  action; 
and,  being  in  violation  of  the  early  laws  against  champerty 
iind  maintenance,  the  courts  refused  to  sustain  them.^s  This 
doctrine  prevailed  for  many  years,  and  still  obtains,  though 
in  a  less  obnoxious  form,  in  a  few  of  the  states;^'-'  but  even 
in  states  where  such  conveyances  are  discouraged,  they  have 


■*3  Under  the  English  law  the 
title  included  a  large  number  of 
subjects  wholly  unknown  in  Amer- 
ica, as  forest,  chase,  free-warren, 
fishery,  etc. 

4-iDufour  V.  Stacey,  90  Ky.  288; 
Lippencott  v.  Allander,  27  Iowa, 
460. 

•»n3  Wash.  Real.  Prop.  (4th  ed.) 
329. 

4«  Co.  Lit.  214;  4  Kent's  Com.  446. 

4T  Jackson  v.  Demont,  9  Johns. 
(N.  Y.)  55;  Thurman  v.  Cameron, 
24  Wend.  (N.  Y.)  87;  Early  v. 
Garland,  13  Gratt.  (Va.)  1;  Michael 
V.  Nutting,  1  Ind.  291;  Dexter  v. 
Nelson,  6  Ala.  68;  Ring  v.  Gray,  6 
B.  Mon.  (Ky.)  368;  Way  v.  Ar- 
nold, 18  Ga.  181 ;  Brinley  v.  Whit- 
ing, 5  Pick.  (Mass.)  348;  Betsey  v. 
Terrence,   34   Miss.   132;    Heirs  v. 


Kidd,  3  Ohio,  541;  Dame  v.  Win- 
gate,  12  N.  H.  291. 

•*8  The  ancient  policy,  which  pro- 
hibited the  sale  of  pretended  titles, 
and  held  the  conveyance  to  a  third 
person  of  lands  held  adversely  at 
the  time  to  be  an  act  of  main- 
tenance, was  founded  upon  a  state 
of  society  which  does  not  exist  in 
this  country.  The  repeated  stat- 
utes which  were  passed  in  the 
reigns  of  Edw.  I.  and  Edw.  III. 
against  champerty  and  mainte- 
nance, arose  from  the  embarrass- 
ments which  attended  the  adminis- 
tration of  justice  in  those  turbu- 
lent times  from  the  dangerous  in- 
fluence and  oppression  of  men  in 
power.     See  4  Kent's  Com.  477. 

■«»  See  Sohier  v.  Coffin,  101  Mass. 
179;  Jones  v.  Monroe,  32  Ga.  188. 


34  THE    SUBJECT-MATTER. 

been  held  to  be  good  against  the  grantor  and  all  other  persons 
except  the  adverse  possessor/'*'  The  doctrine,  however,  does 
not  tiud  favor  in  the  United  States,^^  and  is  fast  becoming 
obsolete.  It  has  lost  much  of  its  force  where  still  adminis- 
tered; and  in  most  of  the  states,  while  the  earlier  decisions 
may  seem  to  have  adopted  it  as  part  of  the  common  law  of 
the  state,  it  has  been  swept  away  by  express  statutory  enact- 
ment. Under  these  statutes  any  one  claiming  title  to  land, 
although  out  of  possession,  and  notwithstanding  there  may 
be  an  actual  adverse  possession  may  sell  and  convey  the  same 
as  though  in  the  actual  possession,  and  his  deed  will  give 
the  grantee  the  same  right  of  recovery  in  ejectment  as  if  the 
grantor  had  been  in  the  actual  possession  when  he  conveyed,^^ 
Where  the  doctrine  is  still  recognized  a  deed  of  laud  of 
which  the  grantor  is  disseized  is  not  wholly  void.  It  is  good 
as  between  the  parties,  and  it  gives  to  the  grantee  the  right 
to  recover  possession  to  his  own  use  in  the  name  of  the 
grantor.  So,  too,  while  it  may  be  that  no  title  passes  which 
will  support  a  real  action  in  the  name  of  the  grantee,  or  give 
him  a  right  of  entry  against  the  disseizor  or  those  claiming 
under  him,^^  j^^  n  jg  settled  that,  if  the  grantee  obtains 
possession  of  the  land,  he  can  unite  that  possession  to  his 
title  acquired  by  such  deed,  and  so,  by  way  of  estoppel  and 
to  prevent  a  circuity  of  action,  defeat  a  real  action  brought 
bj  the  disseizor  to  recover  the  same.  The  disseizin  is  ter- 
minated b}'  the  entry  and  occupation  of  one  who  claims  title 
by  deed  from  the  true  owner,  and  not  adversely,  and  the 
latter  as  well  as  all  those  from  whom  by  successive  deeds 
the  title  is  derived  are  estopped  by  their  several  deeds  to 
deny  that  title.  So,  although  the  deed  gives  to  the  grantee 
no  right  of  entry,  because  such  right  is  not  assignable  at 
common  law,  yet  if  he  enters  and  obtains  possession,  even 

50  University  v.  Joselyn,  21  Vt.  ey,  14  Wis.  468;  Carder  v.  McDer- 
52;  Abernathy  v.  Boazman,  24  Ala.    mott,  12  Tex.  546. 

189;  Hamilton  v.  Wright,  37  N.  Y.        r,-' Chicago  v.  Vulcan  Iron  Works, 

502.  93    111.    222;    Crane  v.    Reeder,    21 

51  Roberts  v.  Cooper,  20  How.  Mich.  82;  Stewart  v.  McSweeney, 
(U.  S.)  467;  Cresenger  v.  Welch.  14  Wis.  468;  Roberts  v.  Cooper,  20 
15  Ohio,  156;   Drennan  v.  Walker,  How.  (U.  S.)  467. 

21  Ark.  539;  Stewart  v.  McSween-        f".:!  Land     v.     Darling,     7     Allen 

(Mass.),  205. 


THE    PROPERTY.  35 

against  the  wishes  of  the  party  in  possession,  the  title  is 
thereby  made  good  against  the  hitter,  and  cannot  l»e  dispnted 
in  an  action  which  pnts  the  title  directly  in  issne.  In  an 
action  of  trespass  the  grantee  may  not  be  able  to  jnstify  such 
eutiy,  but  it  does  not  follow  for  that  reason  that  he  luis  no 
defense  to  a  real  action.  He  does  not  by  his  tortious  entry 
forfeit  his  right  to  recover  possession  in  the  name  of  the 
grantor,  and  because  he  has  this  right  the  demandant  is  not 
allowed  to  set  up  his  claim  in  a  real  action  against  him.''-* 

•'•'See  Wade  v.   Lindsey,  6  Met.    Ill  Mass.  148;  Rawson  v.  Putnam, 
(Mass.)   407;  Farnum  v.  Peterson,    128  Mass.  552. 


Art.  II.    The  Estate. 

§  26.  Definition.  §  36.     Estates  at  will  and  by  suffer- 

27.  Estates  at  common  law.  ance. 

28.  Estates  under  the  statute.  37.     Joint  estates. 

29.  Fee-simple.  38.     Estates  by  entirety. 

30.  Fee-tail.  39.     Contingent  interests  and  es- 

31.  Estates  for  life.  tates. 

32.  Dower.  40.     Expectancies  and  naked  pos- 

33.  Curtesy.  sibilities. 

34.  Homesteads.  41.    Powers. 

35.  Estates  for  years. 

§  26.  Definition.  An  estate^  has  been  defined  as  the  degree, 
quantity,  nature  and  extent  of  interest  which  a  person  has 
in  real  property  ;2  and  in  every  sale  of  land  direct  reference 
is  had  to  the  estate  to  be  conveyed,  whether  the  same  receives 
specific  mention  or  not;  and  this  estate,  unless  limited  by 
express  words,  is  usually  held  to  be  all  that  the  vendor 
possesses.  He  cannot  convey  a  greater  estate,  no  matter  w^hat 
language  may  be  used;  but  should  he  assume  so  to  do,  and 
to  warrant  the  interest  thus  purported  to  be  sold,  he  will  be 
estopped  to  deny  that  he  did  not  so  possess  the  same  if  at 
any  subsequent  period  he  should  perchance  acquire  it. 

§27.  Estates  at  common  law.  The  main  ingredients  of 
estates  are  classified  as  quantity  and  quality.  Quantity  has 
reference  to  the  duration  and  extent  of  estates,  and  occasions 
their  primary  division  into  such  as  are  freehold^  and  such  as 
are  less  than  freehold.    The  former  has  been  described  as  an 

1  In  Latin,  status,  because  it  sig-  one  given  in  the  text,  however,  is 

nifies  the  condition  or  circumstance  its  true  technical  meaning, 
in   which   the   owner   stands  with       •''  This  was  called,  in  the  ancient 

regard  to  his  property.  books,  liberum  tenementum,  frank 

-  1    Bouv.    Law    Diet.    539.      The  tenement,  or  freehold,  and  was  for- 

term  is  also  used  in  a  general  and  merly  described  to  be  such  an  es- 

extensive  sense  as  applied  to  lands  tate  as  could   only  be  created   by 

and     houses — as,     "my    estate    at  livery  of  seizin,  a  ceremony  similar 

Blank,"  etc.;  and  in  the  case  of  de-  to  the  investure  of  the  feudal  law. 

cedents  this  sense  has  acquired  a  Since  the  introduction  of  modern 

legal    signification,    including   per-  conveyancing  this  definition  has,  of 

sonal  as  well  as  real  property.    The  course,  no  application. 

36 


THE    ESTATE.  37 

interest  in  lands  or  other  real  property,  held  by  a  free  tenure,* 
for  the  life  of  the  tenant  or  that  of  some  other  person,  or  for 
some  uncertain  period.  The  test  seems  to  lie  in  its  indeter- 
ininajte  duration;  for  if  the  utmost  period  of  time  to  which 
an  estate  can  last  is  fixed  and  determined,  or  may  be  deter- 
mined by  the  volition  of  another,  it  is  not,  under  the  common- 
hnv  rules,  an  estate  of  freehold.'"'  Quality  refers  to  the  tenure 
by  which  the  estate  is  held,  and  to  the  manner  of  its  enjoy- 
ment, as  absolutely,  jointly,  in  common,  etc.  Freeholds  are 
themselves  divided  into  estates  of  inheritance  and  estates  not 
of  inheritance;  the  former  comprisin^f  estates  of  unqualified 
ownership  and  potentially  infinite  duration,  the  latter  estates 
for  life,  or  those  of  indefinite  duration  which  may  endure  for 
a  life. 

Allodial  titles  beinjjf  unknown  to  the  common  law,  the  larj?- 
est  estate  which  a  subject  could  i)ossess  in  land  was  termed 
a  fee,  or,  as  usually  written,  a  fee-simple.  This  term  was 
derived  from  the  feudal  system,  and  oripjinally  signified  the 
tenure  by  which  the  land  was  held.  In  itself  it  denoted  a 
full  power  of  disposition  during  the  life-time  of  the  tenant 
and  of  descent  to  his  heirs  upon  his  death.  But  the  British 
laud  system  was  always  highly  complex  and  very  artificial, 
and  the  fee,  in  many  cases,  was  hedged  about  with  a  large 
number  of  what  to  us  now^  seems  a  bewildering  maze  of  limi- 
tations, conditions  and  restrictions,  amid  the  subtilties  of 
which  even  the  astute  common-law  conveyancer  often  floun- 
dered in  helpless  confusion.  The  fee  was  divided  into 
fee-simple    absolute,    fee-simple    conditional    and    fee-simple 

4  Upon   the    introduction   of   the  fore,  was  called  a  freeholder,  be- 

feudal  law,   all  the  lands  in  Eng-  cause  he  might  maintain  his  posi- 

land    became    holden   either   by    a  tion  against  his  lord.     See  Cruise 

free  or  a  base  tenure.    The  tenant  Dig.  tit.  I,  s.  16. 
who  held  by  a  free  tenure  had  al-        •>  Thus,  if  lands  are  conveyed  to 

ways  a  right  to  the  enjoyment  of  a  man  and  his  heirs  forever,  or  for 

the  land  for  his  life  at  least,  and  the  term  of  his  natural  life,  or  un- 

could  not  be  dispossessed,  even  for  til  he  is  married,  he  has  an  estate 

the  non-payment  of  his  rent  or  the  of  freehold;   but  if  lands  are  lim- 

non-performance    of    his   services;  ited    to   a    man    for    five    hundred 

whereas   the   tenant   who   held   in  years,  or  for  ninety-nine  years,  if 

•villenage  might  be  turned  out  at  he  shall  so  long  live,  he  has  not 

the  pleasure  of  his  lord;   the  per-  an  estate  of  freehold.     2  Bl.  Com. 

son  holding  by  a  free  tenure,  there-  386. 


38  THE    SUBJECT-MATTER. 

qualified,  or  base  fee,  or,  as  sometimes  called,  a  determinable 
fee.^  Growing  out  of  these  estates  was  a  vast  number  of 
reversions,  remainders,  etc.,  in  many  cases  very  complex,  and 
all  bearing  evidence  of  the  highest  degree  of  legal  ingenuity 
in  their  several  inventors.  Notably  among  the  devices  con- 
trived to  perpetuate  power  and  wealth  in  the  hands  of  certain 
families  was  the  system  of  estates-tail,  which  almost  wholly 
restrained  the  power  of  alienation,  and  the  land  continued 
to  pass  to  successive  heirs,  in  the  order  named  by  the  donor, 
until  default  of  issue  caused  a  reverter.  Estates  were  limited 
upon  estates,  apparently  without  end,  and  remainders  were 
created  upon  remainders  for  the  benefit  of  generations  far  in 
the  future. 

The  greatest  nicety  was  observed  in  the  creation  of  all 
common-law  estates,  of  whatever  kind  and  nature,  and  great 
stress  was  laid  upon  the  employment  of  the  language  by 
which  they  were  raised. 

§  28.  Estates  under  the  statute.  In  most  of  the  states  the 
nature  and  quality  of  estates  in  land  have  been  formally 
defined  and  fixed  by  statute,  and  while  in  a  majority  of 
instances  the  common-law  nomenclature  has  been  retained, 
the  common-law  incidents  have  generally  been  greatly  modi- 
fied or  abolished.  Estates  of  inheritance  and  for  life  are 
usually  classed  as  freeholds;  while  estates  for  years,  without 
regard  to  the  period  of  duration,  are  denominated  chattels 
real,  and  subjected  to  chattel  incidents.'^  Estates  at  will  or 
by  sufferance  are  generally  regarded  as  mere  chattel  interests. 
With  respect  to  the  time  of  their  enjoyment,  estates  are  said 
to  be  in  possession  or  expectancy — the  former  being  where 
the  owner  has  an  immediate  right  to  possess  and  enjoy  the 
land,  the  latter  where  the  right  to  possession  is  postponed 
to  a  future  period.  Estates  in  expectancy  are  themselves 
divided  into  future  estates  and  reversions.  A  future  estate 
is  an  estate  limited  to  commence  in  possession  at  a  future 
day,  either  without  the  intervention  of  a  precedent  estate  or 
on  the  determination,  by  lapse  of  time  or  otherwise,  of  a 

6  The  principle  is  still  retained  v.  Hill,  1  N.  H.  350;  Spangler  v. 
under  what  is  termed  a  conditional  Stanler,  1  Md.  Ch.  36;  Chapman  v. 
limitation.  Gray,  15  Mass.  439. 

7  See  2  Bl.  Com.  386;    Brewster 


THE    ESTATE.  39 

precedent  OHtate  created  at  the  Kame  time.  When  a  future 
estate  is  dependent  upon  a  precedent  estate  it  i.s  called  a 
remainder,  and  may  ordinarily  be  created  and  transferred  by 
that  name.  Reversions  remain  as  at  common  law,  and  are 
the  residue  of  estates  lef(  in  the  ^i-antor  or  his  heirs,  commenc- 
ing; in  iK)sseHsion  on  the  determination  of  particular  estates 
granted.*^ 

Entailed  estat<'s,  with  all  their  incidents,  have  been  gen- 
erally abolished,  and  as  a  rule  every  future  estate  is  void  in 
its  creation  which  suspends  the  absolute  power  of  alienation 
for  a  longer  period  than  during  the  continuance  of  two  lives 
in  being  at  tlie  creation  of  the  estate,''  except  that  a  conting- 
ent remainder  in  fee  may  be  created  on  a  prior  remainder  in 
fee,  to  take  effect  in  the  event  that  the  persons  to  whom  the 
first  remainder  is  limited  shall  die  under  the  age  of  twenty- 
one  years,  or  upon  any  contingency  by  which  the  estate  of 
such  persons  may  be  determined  before  they  attain  their  full 
age.i*^'  The  limitation  of  successive  estates  for  life  is  no  longer 
permitted  unless  to  persons  in  being  at  the  creation  thereof; 
and  ordinarily,  when  a  remainder  skall  be  limited  on  more 
than  two  successive  estates  for  life,  all  the  life  estates  subse- 
quent to  those  of  the  two  persons  first  entitled  thereto  are 
void,  and  ujjon  the  death  of  those  persons  the  remainder  takes 
effect  in  the  same  manner  as  if  no  other  life  estate  had  been 
created.  Usually  no  remainder  can  be  created  upon  an  estate 
for  the  life  of  any  other  person  than  the  grantee  of  such, 
estate,  unless  such  remainder  be  in  fee;  nor  can  any  remainder 
be  created  upon  such  an  estate  in  a  term  for  years,  unless  it 
be  for  the  whole  residue  of  the  term. 

§  29.  Fee-simple.  Freehold  estates  of  inheritance  are 
usually  denominated  estates  in  fee — a  name  borrowed  from 
the  ancient  laud  system  of  England,  but  of  far  greater  import 
here  than  there.  It  signifies  an  absolute  estate  of  inheritance, 
clear  of  any  restrictions  to  particular  heirs,  and  is  the  largest 
estate  and  most  general  interest  that  ean  be  enjoyed  in  land, 

8  The  rtpfinitions  of  the  text  ap-  in  being  by  whom  an  absohite  fee 

ply  generally  to  all  of  the  states  in  possession  can  be  conveyed, 

which   have   followed   the   lead    of  '"An    exception    is    also    made 

New  York.  when    land    has    been    granted    to 

8  Such  power  of  alienation  is  sus-  literary  or  charitable  corporations 

pended  when  there  are  no  persons  for  their  sole  use  and  benefit. 


40  THE    SUBJECT-MATTER. 

being  the  entire  property  therein,  and  confers  an  unlimited 
power  of  alienation.'!  The  estate  is  wholly  comprised  in  the 
word  "fee,"  although  it  is  customary  to  describe  it  as  a  ''fee- 
simple,"  and  in  some  instances  as  ''fee-simple  absolute."  It 
has  been  said  that  the  term  "simple"  has  been  added  for  the 
purpose  of  showing  that  the  estate  is  descendible  to  the  heirs 
generally,  without  restraint  to  the  heirs  of  the  body,  etc.;' 2 
and  possibly  if  the  American  estate  were  identical  with  its 
English  prototype  this  explanation  would  have  significance; 
but  as  a  matter  of  fact  as  well  as  law  the  addition  of  the 
word  "simple"  adds  nothing  to  the  force  or  comprehensiveness 
of  the  term.' 3 

The  creation  of  the  estate  was  formerly  very  technical,  and 
was  raised  only  by  a  grant  to  a  man  and  his  heirs;  hence,  as 
Littleton'^  quaintly  observes,  "if  a  man  would  purchase  lands 
or  tenements  in  fee-simple,  it  behooveth  him  to  have  these 
words  in  his  purchase;  to  have  and  to  hold  to  him  and  his 
heirs;  for  these  words  (his  heirs)  make  the  estate  of  inherit- 
ance." For  many  years  the  rule  as  stated  by  Littleton  pre- 
vailed in  the  United  States;  but  more  recently  the  statute 
has  abrogated  the  common-law  rule,  and  every  estate  in  lands 
w^hich  may  be  granted,  conveyed  or  devised  is  deemed  a  fee- 
simple  or  estate  of  inheritance,  if  a  less  estate  is  not  limited 
by  express  words  or  created  by  construction  or  operation  of 
law.'^ 

§  30.  Fee-tail.  Donations  of  land  were  originally  simple 
and  pure,  without  any  condition  or  modification  annexed  to 
them;  and  the  estates  created  by  such  donations  were  held 
in  fee-simple.  In  course  of  time,  however,  it  became  custom- 
ary to  make  donations  of  a  more  limited  nature,  by  which  the 
gift  was  restrained  to  some  particular  heirs  of  the  donee, 
exclusive  of  others;  as,  to  the  heirs  of  a  man's  body,  by  which 
only  his  lineal  descendants  were  admitted,  in  exclusion  of 
collateral  heirs;  or  to  the  heirs  male  of  his  body,  in  exclu- 
sion both  of  collateral  heirs  and  lineal  female  heirs.'®    These 

11  Haynes  v.  Bourn,   42  Vt.  686.  deed  purports  to  convey  all  the  in- 

12  1  Prest.  Est.  420.  terest  and   title  of  the  grantor  it 

13  Jecks  V.  Toussing,  45  Mo.  167.  will    be    given    effect   accordingly. 

14  Lit.  §  1,  ch.  1,  b.  1.  Thomas  v.  Chicago,  55  111.  403. 

15  Leiter  V.  Sheppard,  85  111.  242;  10  These  limited  donations  seem 
Fash  V.  Blake,  38  111.  363.    Where  a  to  have  come  into  use  in  England 


THE    ESTATE. 


41 


estates  were  known  as  estates  in  fee  tail,  being  estates  of 
inheritance,  but  descendible  only  to  some  particular  heirs  of 
the  persons  to  whom  they  were  granted,  and  not  to  theii-  heirs- 
general.^^  Th(,'  object  was  to  preserve  great  lauded  proper- 
ties intact  to  particular  families  by  restricting  the  power  of 
alienation;  and  the  estate  continued  so  long  as  there  was 
posterity  in  the  regular  order  of  descent,  but  determined  as 
soon  as  it  reached  an  owner  who  died  without  issue. 

One  of  the  marked  characteristics  of  American  law  is  its 
abhorrence  of  perpetuities  and  of  all  devices  calculated  to 
place  restraints  upon  free  alienation.  This  early  became  man- 
ifest in  respect  to  estates-tail;  and  while  the  estate  cannot 
be  said  to  be  altogether  abolished,  it  has  been  so  modified 
that  where  land  is  given  to  one  and  the  heirs  of  his  body 
begotten  the  entail  extends  only  for  one  degree.    Thus,  the 


about  the  end  of  the  reign  of 
Henry  II.,  and  were  probably  in- 
troduced for  the  purpose  of  re- 
straining the  power  of  alienation, 
which  at  that  time  had  become 
general  in  the  case  of  fee-simple 
estates.  But  the  propensity  which 
then  prevailed  to  favor  a  liberty  of 
alienation  induced  the  courts  of 
justice  to  construe  limitations  of 
this  kind  in  a  very  liberal  man- 
ner; and,  instead  of  declaring  that 
these  estates  were  descendible  to 
those  heirs  only  who  were  particu- 
larly described  in  the  grant,  ac- 
cording to  the  manifest  intention 
of  the  donors  and  the  strict  prin- 
ciples of  the  feudal  law,  and  that 
the  donees  should  not  in  any  case 
be  enabled  by  their  alienation  to 
defeat  the  succession  of  those  who 
were  mentioned  in  the  gift,  or  the 
donor's  right  of  reverter,  they  had 
recourse  to  an  ingenious  device 
taken  from  the  nature  of  a  condi- 
tion. The  estate  was  regarded  as  a 
conditional  fee;  that  is,  it  was  held 
to  be  granted  to  a  man  and  the 
heirs  of  his  body  on  condition  that 
he  had  such  heirs;  and  as  soon  as 


issue  was  born  the  estate  became 
absolute  by  the  performance  of  the 
condition,  while  the  right  of  alien- 
ation might  be  freely  exercised. 
From  this  mode  of  construing  con- 
ditional fees  the  purposes  for 
which  they  were  intended  were 
completely  frustrated;  and,  there- 
fore, the  nobility,  in  order  to  per- 
petuate their  possessions  in  their 
own  families,  procured  the  statute 
of  Westm.  2,  13  Edw.  I.,  commonly 
known  as  the  statute  De  Donis, 
which  provided  that  the  will  of 
the  giver,  according  to  the  form  in 
the  deed  manifestly  expressed, 
should  be  observed,  "so  that  they 
to  whom  a  tenement  was  so  given 
under  condition  should  not  have 
power  to  alien  the  same  tenement, 
whereby  it  should  remain  after  the 
death  of  the  donees  to  their  issue, 
or  to  the  donor  or  his  heir  if  issue 
failed."     See  Cruise.  Dig.  tit.  II. 

17  It  is  called  an  estate-tail,  or  a 
fee-tail,  from  its  similarity  to  the 
feodum  talliatum.  which  appears 
to  have  been  well  known  at  that 
time. 


42  THE    SUBJECT-MATTER. 

douee  would  take  a  life  estate,  while  the  second  taker  would 
have  the  remainder  in  fee. 

§  31.  Estates  for  life.  An  estate  for  life  is  a  freehold  inter- 
est in  lands,  both  at  common  law  and  under  the  statute,  the 
duration  of  which  is  confined  to  the  life  or  lives  of  some 
particular  person  or  persons,  or  to  the  happening  or  not 
happening  of  some  uncertain  event.^*^  It  confers  upon  the 
tenant  the  jjossession  and  enjo^Tiient  of  the  land  during  the 
continuance  of  his  estate,  while  the  absolute  property  and 
inheritance  of  the  land  itself  is  vested  in  some  other  person. 
Such  estates  are  created  in  two  ways:  either  expressly,  as  b}'' 
deed  or  other  legal  assurance,  or  by  the  operation  of  some 
principle  of  law;^''  but  the  incidents  are  much  the  same  in 
either  case.  Whenever  lands  are  conveyed  to  a  man  for  the 
term  of  his  own  life  he  is  called  tenant  for  life;  but  where  he 
holds  for  the  life  of  another  he  is,  in  technical  parlance,  tenant 
pour  aider  vie;  and  in  like  manner  where  a  person  having 
an  estate  for  his  own  life,  either  by  express  limitation  or  by 
the  operation  of  some  principle  of  law,  grants  it  over,  the 
grantee  becomes  the  tenant  pour  avter  vie. 

Estates  for  life  will  generally  endure  as  long  as  the  life  or 
lives  for  which  they  are  granted ;  but  there  are  estates  for  life 
which  may  determine  upon  future  contingencies  before  the 
death  of  the  person  to  whom  they  are  granted.  Thus,  if  an 
estate  be  given  to  a  woman  so  long  as  she  remains  single,  or 
during  her  coverture,  or  as  long  as  the  grantee  shall  dwell  in 
a  particular  place,  etc., — in  all  these  cases  the  grantees  would 
have  estates  for  life,  determinable  on  the  happening  of  uncer- 
tain events. 

Every  tenant  for  life  has  a  right  to  the  full  use  and  enjoy- 
ment of  the  land,  and  of  all  its  annual  profits  during  the 
continuance  of  the  estate.  He  also  has  the  power  of'alienating 
his  whole  estate  and  interest,^*'  or  of  creating  out  of  it  any 
less  estate  than  his  own,  unless  restrained  by  positive  condi- 
tion; and  while  any  attempt  to  create  a  greater  estate  than 
his  own  must  necessarily  be  void,  upon  the  principle  that  a 
man  cannot  convey  that  which  he  does  not  possess,  yet  his 

18  Cruise,  Dig.  tit.  3.  -'o  Roseboom   v.   Van   Vechten,   5 

19  Stewart     v.     Clark,     13     Met.    Denio   (N.  Y.),  414. 
(Mass.)   79. 


THE    ESTATE.  43 

deed  will  nevertheless  be  operative  and  eU'ective  to  pass  what- 
ever estate  or  interest  he  has.-* 

§  32.  Dower.  Among  the  life  estates  derived  from  the  com- 
mon law  is  tliat  which  a  widow  acquires  in  a  certain  portion 
of  her  husband's  lands,  after  his  death,  for  her  support  and 
maintenance.  This  estate  is  known  as  dower,  and  is  said  to 
have  been  derived  from  the  Germans,  among  whom  it  was  a 
rule  that  a  virgin  should  have  no  marriage  jjorlion,  but  that 
the  husband  should  allot  a  jjart  of  his  property  for  her  use 
in  case  she  survived  him.22  From  an  early  day  this  seems 
to  have  been  a  part  of  the  common  law  of  England,  receiving 
frequent  mention  in  the  royal  charters  and  concessions,  and 
at  Littleton's  time  had  assumed  much  the  same  condition 
that  it  retains  to-day;  for,  in  speaking  of  it,  he  says:  ''Tenant 
in  dower  is  where  a  man  is  seized  of  certain  lands  and  tene- 
ments in  fee-simple,  fee-tail  general,  or  as  heir  in  special  tail, 
and  taketh  a  wife,  and  dieth;  the  wife,  after  the  decease  of 
her  husband,  shall  be  endowed  of  a  third  part  of  such,  lands 
and  tenements  as  were  her  husband's  at  any  time  during  the 
coverture;  to  have  and  to  hold  the  same  to  the  wife  in 
severalty,  by  metes  and  bounds,  for  term  of  her  life;  whether 
she  hath  issue  by  her  husband  or  no,  and  at  what  age  soever 
the  wife  be,  so  as  that  she  be  past  the  age  of  nine  years  at  the 
time  of  the  death  of  her  husband."-^  But  the  common-law 
right  of  dower  no  longer  exists  in  the  United  States,  the  rights 
of  the  surviving  wife  in  the  real  property  of  her  deceased 
husband  being  those  created  by  statute  alone,  and  whatever 
incidents  may  have  attached  to  the  ancient  estate  have  either 
been  swept  away  or  incorporated  in  the  rights  derived  under 
the  statute.     No  uniform  measure,  either  as  to  quantity  or 

21  This  is  directly  the  reverse  of  the   reversion  was  divested,   such 

the  ancient  doctrine,  for  fealty  was  conveyance  was  held  to  operate  as 

the   main   tenure   by   which   these  a  forfeiture  of  the  life  estate.     In 

estates  were  formerly  held;   hence  the   United    States  this   matter   is 

they  were  for  many  years  consid-  now   very   generally   regulated   by 

ered    in    many    respects    as    strict  statutes    which    provide    that    no 

feuds,  and  forfeitable  for  many  of  deed  of  a  tenant  for  life  or  years 

the  causes  for  which   feuds  were  shall   work   a   forfeiture,   or  shall 

formerly  forfeited.    Hence  if  a  ten-  operate   to   pass    a   greater   estate 

ant  for  life  attempted  to  convey  a  than  he  could  lawfully  convey, 

greater  estate   than   he   possessed,  --  Cruise,  Dig.  tit.  VI. 

whereby  the  estate  in  remainder  or  -'-^  Litt.  §  36. 


44  THE    SUBJECT-MATTER. 

quality,  has  been  adopted;  but  in  the  main  the  estate  con- 
ferred upon  the  widow  conforms  to  that  of  the  common  law, 
and  consists  of  the  use,  during  her  life,  of  one-third  x>art  of 
all  the  lands  whereof  her  husband  was  seized  of  an  estate  of 
inheritance  at  any  time  during  the  marriage. 

During  the  life-time  of  the  husband  the  wife  has  only  an 
inchoate  right,  which  is  not  an  estate  in  the  land,  but  a  mere 
contingent  interest  that  attaches  to  the  land  as  soon  as  there 
is  the  concurrence  of  marriage  and  seizin.^^  This  interest 
becomes  fixed  and  certain  upon  the  death  of  the  husband,  and 
after  assignment  of  dower  develops  into  a  freehold  estate  in 
the  land.25 

During  coverture  the  wife's  inchoate  right  of  dower  is 
incapable  of  being  transferred  or  released,  except  to  one  who 
has  already  had,  or  by  the  same  instrument  acquires,  an 
independent  interest  in  the  land.^^  The  right  is  not  such  an 
estate  as  can  be  leased  or  mortgaged;-'^  neither  can  a  married 
woman  bind  herself  personally  by  a  covenant  or  contract 
affecting  her  right  of  dower  during  the  marriage.  Hence,  a 
deed  executed  by  husband  and  wife  with  covenants  of  war- 
ranty does  not  estop  the  wife  from  setting  up  a  subsequently- 
acquired  title  to  the  same  lands,^^  During  the  marriage,  no 
act  of  the  husband  alone  can  bar  or  extinguish  this  interest 
but  a  woman  may  be  barred  of  her  dower  by  jointure,  settled 
upon  her  before  marriage,  or  by  joining  with  her  husband  in 
a  deed  of  conveyance,  properly  acknowledged.  The  release 
of  dower  which  a  woman  makes  by  joining  with  her  husband 
in  a  conveyance  of  his  land  operates  against  her  only  by 
estoppel,  however,  and  can  be  taken  advantage  of  only  by 
those  who  claim  under  that  conveyance  ;29  and  if  the  convey- 
ance is  void  or  ceases  to  operate,  she  is  again  clothed  with  the 
right  which  she  has  released. 

24  Witthaus  V.  Schack,  105  N.  Y.  27  Croade  v.  Ingraham,  13  Pick. 
332.  (Mass.)    33. 

25  Elmdorf  v.  Lockwood,  57  N.  Y.  28  Jackson  v.  Vanderheyden,  17 
322;    Johnson   v.    Montgomery,    51  Johns.   (N.  Y.)   167. 

111.  185.  29Mallony    v.    Horan.    49    N.    Y. 

2fi  Robinson     v.     Bates,     3     Met.  Ill;     Locket    v.    James,    8    Bush 

(Mass.)  40;  Tompkins  v.  Fonda,  4  (Ky.),   28;    French   v.   Crosby,    61 

Paige   (N.  Y.),  448;   Reed  v.  Ash,  Me.  502. 
30  Ark.  775;    Marvin  v.  Smith,  46 
N.  Y.  571. 


THE    ESTATE.  45 

The  inchoate  rij^ht  of  dower,  tlierefoie,  not  being  the  Hubject 
of  a  conveyance  in  any  of  the  usaal  forms  by  which  real  proj)- 
erty  is  transferred,  and  the  doctrine  of  estoppel  by  which 
subsequently-acquired  titles  are  made  to  inure  to  the  benefit 
of  foraier  grantees  being  inaitplicable,  it  follows  that  the 
grantee  or  mortgagee  claiming  under  an  instrument  executed 
by  a  married  woman  during  coverture  acquires  no  title  or 
interest  in  the  dower  of  the  grantor  or  mortgagor  when  the 
estate  becomes  absolute,  whether  dower  has  been  assigned  or 
not.30  But  in  all  cases  where  the  wife  unites  with  her  husband 
in  a  conveyance  properly  executed  by  her,  which  is  effectual 
and  oi>erative  against  him,  and  which  is  not  superseded  or  set 
aside  as  against  him  or  his  grantee,  her  right  of  dower  is 
forever  barred  and  extinguished  for  all  purposes  and  as  to  all 
persons.3^ 

Upon  the  death  of  the  husband  the  inchoate  right  of  the 
wife  acquired  by  the  marriage  becomes  absolute;  yet  she  has 
no  estate  in  the  lands  of  her  deceased  husband  until  her 
dower  has  been  admeasured  and  assigned,^-  and  her  rights 
therein  can|  only  be  released  to  the  owner  of  the  fee  or  to 
some  one  in  privity  with  the  title  by  his  covenants  of  war- 
ranty .^^  After  assignment  the  widow  acquires  an  estate  of 
freehold  in  the  land  allotted  in  severalty,  and  her  life  estate 
therein  possesses  all  the  attributes  of  other  estates  for  life, 
including  the  right  of  alienation.^"* 

§  33.  Curtesy.  Another  life  estate  derived  from  the  com- 
mon law  is  that  which  a  husband  acquires  in  his  wife's  lands 
by  reason  of  the  marital  relation,  called  an  estate  by  the 
curtesy .^^     Originally  this  estate  was  raised  only  when  the 

30  Marvin  v.  Smith,  46  N.  Y.  571;  thus  prevent  a  breach  of  his  cove- 
Carson  v.  Murray,  3  Paige  (N.  Y.),  nants.  La  Framboise  v.  Crow,  56 
483.  III.  197. 

31  Elmdorf  v.  Lockwood,  57  N.  Y.  " »  Dower  is  probably  the  only  ex- 
322.  isting  use  in  which  a  title  that  is 

32  Johnson  v.  Montgomery,  51  111.  complete  and  unopposed  by  any  ad- 
185.  verse  right  of  possession  does  not 

33  As  where  the  former  owner  of  confer  upon  the  person  in  whom  it 
the  fee  in  land  in  which  dower  is  vested  the  right  of  reducing  it 
rights  still  exist  has  conveyed  the  to  possession  by  entry  before  as- 
same  with  warranty,  he  may  pur-  signment.  Hoots  v.  Graham,  23  111. 
chase  the  right  for  the  benefit  of  81. 

his  grantee,  however  remote,  and       35  The  full  title  of  this  ancient 


46  THE    SUBJECT-MATTER. 

husband  had  issue  by  the  wife;  for  before  that  event  the 
husband  had  onh'  an  estate  during  the  joint  lives  of  himself 
and  his  wife.  The  law  that  a  husband  who  had  issue 
should  retain  the  lands  of  his  deceased  wife  during 
his  life  seems  to  have  prevailed  among  all  the  northern 
nations;^*'  and  when  the  customs  of  the  Normans  were  reduced 
to  writing  this  law  was  inserted  among  them  and  established 
in  England,  probably  during  the  reign  of  Henry  I.  The  estate 
is  described  in  the  ancient  books  as  ''where  a  man  taketh  a 
wife  seized  in  fee-simple,  or  in  fee-tail  general,  or  seized  as 
heir  in  special-tail,  and  hath  issue  by  the  same  wife,  male  or 
female,  born  alive;  albeit  the  issue  after  dietli  or  liveth,  yet 
if  the  wife  dies  the  husband  shall  hold  the  land  during  his 
life,  by  the  law  of  England. "^'^ 

While  the  right  of  the  husband  as  tenant  by  the  curtesy 
has  been  expressly  given  by  statute  in  some  of  the  states,  and 
incidentally  recognized  as  an  existing  legal  estate  in  others, 
yet  in  a  majority  of  them  tenancy  by  the  curtesy  has  been 
abolished,  the  husband  being  given  a  statutory  allowance 
from  the  deceased  wife's  estate,  the  quantity  and  quality  vary- 
ing in  the  different  states.  In  many  the  husband  and  wife 
are  made  statutory  heirs  to  each  other;  and  in  such  cases 
the  husband  takes  the  same  share  in  the  deceased  wife's  estate 
which  she  would,  on  surviving,  take  in  his;  in  others  the 
estate  has  been  reduced  to  extremely  meager  propo.'tions, 
and  accrues  only  in  such  lands  as  the  wife  owned  at  the  time 
of  her  death,  and  of  which  she  had  made  no  valid  disposition 
by  last  will  and  testament. 

By  the  rules  of  the  common  law,  marriage,  seizin  of  the 
wife  and  birth  of  living  issue  were  absolutely  necessary  to 
the  existence  of  this  estate;  but  these  two  latter  incidents  are 

estate  was  "estate  by  the  curtesy  law  it  is  not  peculiar  to  England, 
of  England,"  and  was  so  called  for  but  may  be  found,  more  or  less 
the  reason  that,  unlike  dower,  it  modified,  in  the  ancient  laws  of 
was  not  regarded  as  resting  upon  the  other  parts  of  the  British 
any  moral  foundation,  and  was  islands  and  the  northern  conti- 
therefore  granted  as  a  simple  cur-  nental  nations.  It  has  even  been 
tesy,  or  an  estate  by  the  favor  of  held  by  some  writers  that  the  cus- 
the  law  of  England.  Cruise,  Dig.  tom  may  be  traced  to  one  of  the 
tit.  V;  2  P.  Wms.  703;  Litt.  §  35.  rescripts  of  the  Emperor  Constan- 
ts Notwithstanding  that  this  es-  tine.  See  4  Kent's  Com.  28. 
tate  is  derived   from  the  common  37  Litt.  §  35. 


THE    ESTATE.  47 

practically^  if  not  expressly,  abolished  in  every  state  in  the 
Union.  Seizin,  as  formerly  understood,  i.s  no  louder  necessary 
for  the  creation  or  descent  of  any  estate;  and  marriage,  witli- 
out  respect  to  issiu",  is  sullicient  to  confer  the  riyiht  if  recog- 
nized at  all. 

Subject  to  the  fore^^oin*,^  it  may  be  stated  {generally  that  a 
tenant  by  the  curtesy  may  convey'  his  estate  by  deed  or 
incumber  it  by  mortgage,^^  and  it  seems  such  estate  may  be 
seized  and  sokl  on  execution  to  satisfy  creditors,^'*  tliough 
this  has  been  denied."*^ 

§  34.  Homesteads.  To  the  estates  derived  from  the  com- 
mon law  the  statute  has  added  another  which  in  its  essential 
characteristics  has  no  analogy  in  the  law.  It  is  called  a  home- 
stead, and  is  a  constitutionally  guaranteed  right  annexed  to 
land,  whereby'  the  same  is  exempted  from  sale  under  execution 
for  debt.  In  man}' — perhaps  a  majority — of  the  states  the  home- 
stead right  is  but  a  mere  privilege  of  occupancy  against  cred- 
itors, the  continuance  of  which  depends  upon  the  continuance 
of  prescribed  conditions,^^  but  in  others  it  has  been  raised 
into  an  estate,  limited  only  as  to  its  value,  and  not  by  any 
specific  degree  of  interest  or  character  of  title  in  the  particular 
property  to  which  it  attaches;  and  where  the  worth  of  the 
property  does  not  exceed  the  statutory  valuation  the  estate 
practically  embraces  the  entire  title  and  interest  of  the  house- 
holder therein,  leaving  no  separate  interest  in  him  to  which 
liens  can  attacli  or  which  he  can  alien  distinct  from  the  estate 
of  ho'mestead.'*^ 

As  the  character  of  the  title  is  not  usually  considered 
material  in  the  creation  of  homestead  estates  it  follows  that 
it  may  attach  to  an  equity.  Hence,  if  one  has  possession  of 
land,  under  a.  contract  for  the  purchase  thereof,  he  may 
impress  it  with  the  homestead  character  the  same  as  if  he 
held  the  fee.  In  such  event  the  land  in  his  hands  will  be 
held  subject  only  to  the  lien  of  the  vendor  for  the  unpaid 

:t«  Forbes  v.  Sweesy.  8  Neb.  525;  ■*!  Brame  v.  Craig,  12  Bush  (Ky.). 

Deming    v.    Miles,    35    Neb.    739;  404;  Casebolt  v.  Donaldson,  67  Mo. 

Shortall   v.   Hinckley.   31    111.  219;  308;     Drake    v.    Kinsell.    38    Mich. 

Mettler  v.  Miller,  129  111.  630.  232;  Hill  v.  Franklin,  54  Miss.  632. 

•■!!>  Deming  v.  Miles,  35  Neb.  739,  ■»'-2  Merritt  v.  Merritt,  97  111.  243. 

4"  Welsh  V.   Solenberger,   85  Va. 
441, 


48  THE    SUBJECT-MATTER. 

purchase  money,  and  should  he  afterwards  acquire  the  legal 
title,  under  the  terms  of  the  contract,  the  homestead  right 
will  attach  thereto  and  be  superior  to  any  claim  to  the  land 
which  accrued  after  his  original  acquisition.'*^ 

The  land  to  which  the  homestead  estate  attaches,  must,  as 
a  rule,  consist  of  one  com})act  body,  and  while  two  lots  imme- 
diately contiguous,  the  combined  area  or  value  of  which  does 
not  exceed  the  statutory  limit,  may  be  regarded  as  coming 
within  this  rule,^'  yet  this  is  probably  as  far  as  it  can  be 
made  to  extend.  Two  tracts  of  land  which  touch  only  at 
one  point  will  not,  it  seems,  suffice,^^  nor  can  the  right  be 
claimed  in  a  tract  wholly  isolated."**^ 

The  estate  of  homestead,  having  been  raised  by  law  as  a 
protection  to  the  family,  is  personal  in  its  character,  and 
exists  only  in  favor  of  one  who  already  possesses  some  other 
recognized  estate  in  the  land.  It  is  therefore  incapable  of 
alienation  except  in  connection  with  other  interests,  but  w'hen 
so  joined  may  be  a  proper  subject  of  sale,  mortgage  or  release. 
The  interest  of  the  householder,  if  a  married  man,  is  always 
shared  by  the  wife;  and  her  consent,  manifested  by  a  partici- 
pation in  the  act  of  conveyance,  is  always  necessary  to  com- 
plete the  devolution  of  title. 

So  far  as  the  estate  bears  resemblance  to  the  common-law 
estates,  its  general  features  are  more  nearly  allied  to  estates 
for  life;  and  modem  writers,  whenever  an  attempt  has  been 
made  to  definitely  locate  it,  have  usually  classed  it  in  that 
category. 

§  35.  Estates  for  years.  It  would  seem  that  after  the  Nor- 
man conquest,  while  the  demesnes  of  the  lords  of  manors  w^ere 
generally  cultivated  by  their  villeins,  to  whom  small  tracts 
of  land  were  allotted  for  their  support  and  maintenance,  to  be 
held  at  the  mere  will  of  the  lord,  yet  as  to  those  persons  whose 
condition  was  free  it  became  customary  to  grant  them  lands 
for  a  certain  number  of  years,  to  be  held  in  consideration  of  a 
return  of  com,  hay  or  other  portion  of  their  crops.  By  this 
means  they  acquired  a  certain  interest  in  their  lands,  though 

43  Alexander  v.  Jackson,  92  Cal.  229;  Arendt  v.  Mace,  76  Cal.  315. 
514;  McKee  v.  Wilcox,  11  Mich.  45  Linn  Co.  Bank  v.  Hopkins,  47 
358;  Dortch  v.  Benton,  98  N.  C.  Kan.  580;  Kresin  v.  Mau,  15  Minn. 
190.  119. 

44  Grimes    v.    Portman,    99    Mo.  4g  Walters  v.  People,  18  111.  194. 


THE    ESTATE.  49 

much  inferior  to  an  estate  of  freehold;  yet  notwithstanding 
this  pei-niaueut  intcivst  their  possession  was  esteemed  of  so 
little  consetiiieiict'  that  they  were  rather  considered  as  bailiffs 
or  servants  of  the  lord  than  as  having  any  estate  in  the  land, 
and  their  interest  mi«;ht  be,  and  oft  times  was,  defeated  by  a 
recovery  in  a  real  action.'^  A  tenant  fur  years  was  not  said 
to  be  seized  of  tlie  land,  the  possession  not  having  been  given 
to  him  by  the  ceremony  of  livery  of  seizin;  nor  did  the  mere 
delivery  of  a  lease  vest  any  estate  in  the  lessee,  the  interest 
acquired  being  only  a  right  of  entry;  but  after  he  had  actually 
entered  the  estate  became  vested  in  him,  and  he  was  then 
possessed,  not  properly  of  the  land,  but  of  the  term  of  years — 
the  seizin  of  the  freehold  still  remaining  in  the  lessor. 

In  its  modern  aspects  the  estate  for  years  exhibits  but  few 
of  the  numerous  subtleties  and  refinements  which  formerly 
characterized  it.  It  is  simple  in  form  and  popular  in  use,  and 
with  the  exception  of  the  fee  is  the  most  common  estate 
known  to  our  law.  In  its  essentials  it  is  a  right  to  the  posses- 
sion of  land  for  a  certain  specified  tinie,  and,  unlike  estates 
for  life,  is  never  created  by  act  of  law,  but  always  by  the 
contract  of  the  parties.  It  is  inferior  in  rank  to  a  life  estate, 
however  long  it  may  last;  and,  not  rising  to  the  dignity  of  a 
freehold,  is  at  best  but  a  chattel  interest.  It  is  created  and 
perfected  by  the  execution  and  delivery  of  a  lease  for  the 
term,  and  in  this  respect  differs  materially  from  the  old  estate 
of  the  English  law,^'^  which  required  an  actual  entr}'.  It  may 
be  limited  to  commence  presently  or  in  futiiro,  and,  unless 
restricted  by  the  terms  or  conditions  of  the  grant,  may  be  sold 
and  assigned  the  same  as  other  real  property. 

An  estate  for  years  may  be  terminated  by  expiration  of  its 
owm  limitation,  by  a  surrender  of  the  term  prior  to  that  event, 

4"  The  recoverer  was  supposed  to  years  could  be  created  by  a  lease 

come  in  by  a  title  paramount,  and  or   other   common-law   conveyance 

therefore   not   bound   by   the   con-  without  an  actual  entry  made  by 

tracts  of  the  prior  possessor.     See  the  person  to  whom  the  land  was 

Greenl.  Cruise,  tit.  VIII,  ch.  I.  granted;   for  although  the  grantor 

<8  By  the  common  law  upon  the  had  done  everything  necessary  on 

execution  of  a  lease  the  lessee  ac-  his  part  to  complete  the  contract, 

quired  an  interest  called  interesse  so  that  he  might  never  afterwards 

termini,   which    he   might   at   any  avoid  it,  yet  until  there  had  been 

time   reduce    to   possession   by   an  a   transmutation  of  possession   by 

actual    entry,    but    no    estate    for  actual    entry    of    the    grantee,    it 


§0  THE    SUBJECT-MATTER. 

by  forfeiture  for  condition  broken,  and,  in  some  instances,  by 
merger. 

§  36.  Estates  at  will  and  by  sufferance.  A  tenant  at  will 
is  one  who  lias  no  .sure  or  certain  estate,  but  holds  at  the 
pleasure  of  his  lessor,  who  at  any  time  may  dispossess  him. 
The  tenancy  is  created  only  by  the  entry  of  the  lessee,  and 
may  be  terminated  as  soon  as  commenced.  The  terms  ''at 
will"  and  '"by  sufferance"  are  frequently  employed  in  conjunc- 
tion to  indicate  any  estate  of  indeterminate  duration  depend- 
ing solely  on  the  pleasure  of  the  landlord;  yet,  as  a  matter 
of  law,  the  interests  which  they  represent  are  separate  and 
distinct.  A  tenant  by  sufferance,  technically  speaking,  is  one 
who,  having  been  originally  lawfully  invested,  continues  to 
hold  over  after  the  determination  of  his  estate,  and  is  by  the 
owner  suffered  to  remain  in  possession.^^  In  the  former  case, 
the  tenant  having  acquired  possession  by  the  consent  of  the 
owner,  there  is  between  them  a  privity  of  estate ;  in  the  latter, 
being  much  in  the  nature  of  a  trespass,  there  is  none. 

The  interest  of  a  tenant  at  will  is  the  most  precarious  that 
can  be  had  in  real  property;  and,  because  the  lessor  may 
determine  his  will  and  oust  the  tenant  whenever  he  pleases, 
such  tenant  possesses  nothing  that  can  be  granted  by  him  to 
a  third  person.  But  although  a  tenant  at  will  can  transfer 
no  rights  to  another,  and  a  person  who  assumes  to  come  in 
under  liim  is  only  a  trespasser,  yet  if  such  person  claims  a 
right  of  occupancy  by  virtue  of  such  an  assignment,  and  such 
claim  is  allowed  or  recognized  by  the  owner  of  the  superior 
estate,  he  then  becomes  a  tenant  at  will  the  same  as  his 
predecessor.^^ 

§  37.  Joint  estates.  With  respect  to  the  number  and  con- 
nection of  the  owners,  lands  may  be  held  in  severalty  or 
jointly,  the  fonner  being  where  a  person  holds  the  same  in 

lacked  the  chief  mark  and  indica-  continue    in    possession   after    the 

tion  of  his  consent,  without  which  determination  of  the  preceding  es- 

he  could  not  be  said  to  be  in  pos-  tate.    Greenl.  Cruise,  tit.  IX.    Usu- 

session  or  liable  for  the  use.     See  ally,  however,  the  statute  has  re- 

Greenl.  Cruise,  tit.  VIII,  ch.  I.  versed  this,  and  as  a  penalty  for 

49  Tenants  at  sufferance  were  not  withholding  the  property  imposes 

liable  by  the  common  law  to  pay  upon  the  tenant  double  rent, 

any  rent,  because  it  was  the  folly  ■'"'O  Landon  v.  Townshend,  129  N. 

of   the   owners   to   suffer   them   to  Y.  166. 


THE    ESTATE.  61 

his  own  rij^ht  with,  no  other  person  joined  or  connected  with 
him  in  point  of  interest  during  the  estate  therein;  the  latter 
wherv  two  or  more  persons  take  either  an  estate  of  inheri- 
tance, for  life  or  for  ^ears,  without  any  restrictive,  exclusive 
or  explanatory  words.'*^ 

Foi-'inerly  joint  estates  w<'re  divided  into  those  of  joint 
tenancy,  coparcenary,  and  common.  Joint  tenancy  was  always 
created  by  ])urcliasc — that  is,  by  act  of  the  parties — and 
accrued  only  by  one  and  the  same  conveyance;  it  was  char- 
acterized by  the  great  underlying  principle  of  unity,  which 
extended  both  to  the  interest,  the  title  and  possession;  and 
this  union  and  entirety  of  interest  gave  rise  to  another  incident 
called  the  jus  accrescendi  or  right  of  survivorship.  As  the 
right  of  survivorship  was  often  attended  with  hardship  and 
injustice,  courts  of  equity  at  an  early  day  took  great  latitude 
in  construing  against  joint  tenancies  on  the  ground  of  intent, 
while  by  statute  in  the  United  States  the  general  rule  is  that 
all  estates  vested  in  twoi  or  more  persons  are  to  be  deemed 
tenancies  in  common,  unless  a  different  tenure  is  clearly 
expressed  or  implied  in  the  instrument  creating  the  estate. 
Estates  in  coparcenary  are  practically  unknown  in  this 
country.  They  arose  through  a  peculiar  provision  of  the 
English  law  of  descent,  and  were  raised  only  in  case  of  female 
heirs.^- 

A  tenancy  in  common  was  formerly  created  where  two  or 
more  persons  held  lands  by  several  titles,  and  not  by  a  joint 
title;  and  from  the  fact  that  they  were  all  permitted  to 
occupy  the  land,  they  were  called  tenants  in  common.  The 
only  unity  required  was  that  of  possession,  and  it  mattered 
not  that  one  held  his  estate  in  fee  and  the  other  for  life;  or 
that  one  derived  his  title  through  purchase  and  the  other 
through  descent ;  and  the  estates  might  commence  at  any  time 
without  reference  to  each  other.  Substantially  all  of  these 
incidents  have  been  preserved,  but  with  the  further  addition 

f'l  The  law  will  interpret  a  grant  land  died,  leaving  only  daughters 

of  this  kind  so  as  to  make  all  its  or  other   female   heirs,   the  estate 

parts  take  effect,  which  can   only  descended    to    all    such    daughters 

be  done  by  creating  an  equal  inter-  jointly,  and  they  were  said  to  hold 

est   in   all   the    persons   who   take  in   coparcenary,  and   to  make  but 

under  it.  one  heir  to  the  ancestor.    1  Greenl. 

C2  As  where  a   person   seized   of  Cruise,  tit.  XIX,  sec.  1. 


52  THE    SUBJECT-MATTER. 

that,  by  statute,  in  most  of  the  states,  all  grants  and  devises 
of  lands  made  to  two  or  more  persons  are  construed  to  create 
estates  in  common  and  not  in  joint  tenancy .^^ 

Tenants  in  common  are  seized  of  each  and  every  part  of  the 
property;  but  it  is  not  in  the  power  of  one  to  convey  the 
whole  of  the  same,  or  the  whole  of  a  distinct  portion  thereof, 
or  to  give  a  license  to  do  any  act  which  will  work  a  permanent 
injury  to  the  inheritance  or  lessen  the  value  of  the  estate.^* 
Yet~  as  the  freeholds  are  several  and  distinct,  with  no  privity 
of  estate  between  the  tenants,  each  of  the  individual  interests 
may  be  sold  and  conveyed  to  a  stranger  ;^^  and,  as  property 
indivisible  in  its  character  is  incapable  of  several  possession 
by  each  tenant,  it  therefore  follows  that  the  possession  of  one 
is  a  constructive  possession  of  the  others,  and  when  one  of 
the  tenants  not  in  the  actual  possession  makes  a  sale  of  his 
interest  in  the  property,  the  purchaser  succeeds  to  all  the 
rights  of  the  vendor  as  held  by  him,  without  an  actual  delivery 
of  possession.^^ 

As  stated  above,  a  co-tenant  cannot  make  an  effective  con- 
veyance of  any  specific  part  of  the  common  property.  But 
such  a  conveyance,  or  attempted  conveyance,  will  not  be  void 
and  it  has  been  held  in  a  proceeding  of  this  kind  that,  while 
the  deed  may  be  ineffectual  as  a  conveyance  of  a  specific  part 
it  may  yet  be  allowed  an  operation  as  a  conveyance  of  an 
undivided  interest,  and  where  the  parcel  designated  by  metes 
and  bounds,  or  other  specific  designation,  does  not  exceed  in 
area  and  value  the  interest  of  the  grantor,  the  deed  may,  as 
against  him,  be  treated  as  a  conveyance  of  his  entire  interest 
in  the  common  land.^^ 

§  38.  Estates  by  entirety.  Another  of  the  joint  estates 
derived  from  the  common  law  is  that  which  is  created  when 
a  convej'ance  is  made  to  husband  and  wife  which  does  not 
state  the  manner  in  which  they  shall  hold  the  land,  and  which 

53  An  exception  is  generally  made  Haverly,    70     111.    318.      Compare 

in  respect  to  mortgages  and  to  de-  Barnhart  v.  Campbell,  50  Mo.  597. 

vises  or  grants  made  to  executors,  s-"- Butler  v.  Roys,   25   Mich.   53; 

or  to  husband  and  wife.  Shepherd  v.  Jernigan,  51  Ark.  275. 

•"■'■t  Mattox  V.   Hightshue,   39    Ind.  5«  Brown  v.  Graham,  24  111.  628; 

95;     Shepardson    v.    Rowland,    28  Fischer  v.  Eslaman,  68  111.  78. 

Wis.  108;  Hartford,  etc.  Ore  Co.  v.  st  Young   v.    Edwards,   33    S.   C. 

Miller,    41    Conn.    112;    Murray   v.  404. 


THE    ESTATE.  53 

is  denominated  at,  tenancy  by  entirety.  The  conveyance  in 
such  case  does  not  constitute  them  either  joint  tenants  or 
tenants  in  common;  for  tliey  are,  in  h'^al  contemjdation,  but 
one  person,  and  hence  unabh*  to  take  l)y  moieties.  Hoth  would 
therefore  be  seized  of  the  entirety;  neither  could  dispose  of 
any  j)art  of  the  estate  without  the  assent  of  the  other,  and 
upon  the  death  of  either  the  whole  estate  would  remain  in  the 
survivor.  This  rule  has  not  been  materially  changed  by 
statute,  and  is  accej)ted  in  a  majority  of  the  states.''^  In  such 
an  estate  there  can  be  no  partition,  as  neither  has  any  sei)arate 
interest.  Between  them  there  is  but  one  owner;  and  that  is 
neither  the  one  nor  the  other,  but  both  together.  The  common. 
law,  it  would  seem,  permitted  the  husband,  for  his  own  benefit, 
during  their  joint  lives,  to  use,  possess  and  control  the  land 
and  take  all  the  ^H'ofits  thereof,  and  even  to  mortgage  and 
convey  an  estate  during  such  joint  lives,  though  he  could  make 
no  disposition  of  the  land  that  would  prejudice  the  right  of 
the  wife  in  case  she  survived  him;  but  the  later  and  apparently 
better-considered  cases  hold  that,  from  the  peculiar  nature  of 
this  estate  and  from  the  legal  relation  of  the  parties,  there 
must  be  unity  of  estate,  unit}'  of  possession,  unity  of  control, 
and  unity  in  conveying  and  incumbering  it.^^ 

In  several  of  the  states  where  the  rule  formerly  prevailed 
it  has  been  held  that  the  legal  unity  of  husband  and  wife  has 
been  broken  by  the  "married  women's"  acts,  and  that  they 
take  only  as  tenants  in  common.^^'  But  estates  which  had 
vested  j)rior  to  the  acts  in  question  are  not  affected,  changed 
or  modified  by  them.  They  remove  no  disabilities  and  confer 
no  new  rights  in  relation  to  such  estates,  which  can  only  be 
conve^'ed  or  incumbered  by  the  joint  act  of  both  ])arties,  while 
the  survivor  takes  an  absolute  title  to  the  whole  in  case  of 
death,  as  heretofore.^^ 

r>8  Arnold  v.  Arnold,  30  Ind.  305;  Nunan,   92   N.   Y.    152;    Meyers   v. 

Hemingway  v.  Scales,  42  Miss.  1;  Reed,  17  Fed.  Rep.  401. 

Washburn  V.  Burns.  34  N.  J.  L.  18;  no  chandler   v.    Cheney,    37    Ind. 

McCurdy  v.  Canning,  64  Pa.  St.  39;  391;    Hulett  v.  Inlon,  57  Ind.  412; 

Fisher    v.    Provin,    25    Mich.    347;  McDuff  v.  Beauchamp,  50  Miss.  531. 

Garner  v.  Jones,  52  Mo.  68;  Robin-  ««  Hoffmann  v.  Stigers,  28  Iowa, 

son    V.   Eagle,    29    Ark.    202;    Mar-  302;  Claris  v.  Clark,  56  N.  H.  105; 

burg  V.  Cole,  49  Md.  402;    Hulett  Cooper  v.  Cooper,  76  111.  57;  Walt- 

V.   Inlon,   57   Ind.    412;    Bertles  v.  hall  v.  Goree,  36  Ala.  728. 

01  Harrer  v.  Wallner,  80  111.  197. 


'54  THE    SUBJECT-MATTER. 

A  review  of  the  statutes  shows  that  the  legislation  of  the 
states  concerning  the  property  rights  of  married  women  has 
been  very  uniform,  but  the  judicial  construction  of  similar 
statutes  has  been  variant  and  contradictory.  In  some 
instances,  as  has  been  observed,  courts  have  decided  that  stat- 
utes making  joint  grantees  tenants  in  common,  and  giving  to 
married  women  the  same  rights  in  property  as  though  they 
were  sole,  have  effectually  destroyed  the  common-law  unity  of 
husband  and  wife,  and  made  them  substantially  separate  per- 
sons for  all  purposes;  but  in  a  majority  of  the  states  the 
declared  effect  of  these  statutes  has  been  confined  to  their 
express  terms,  and  they  have  been  held  to  have  no  relation  to 
or  effect  upon  real  estate  conveyed  to  husband  and  wife 
jointly,  and  that,  notwithstanding  these  statutes,  they  still 
take  as  tenants  by  the  entirety .^^^ 

There  is  nothing,  however,  in  the  theoretic  unity  of  husband 
and  wife  which  prevents  them  from  holding  moieties  of  the 
same  estate.  The  question  as  to  the  character  in  which  they 
take  must  be  decided  by  the  terms  of  the  instrument,  and  if 
the  intention  of  the  donor,  as  appears  thereby,  is  that  they 
take  in  common  such  intention  must  prevail.*^^  A  married 
woman  may,  of  course,  take  and  hold  real  property  as  a  joint 
tenant  or  tenant  in  common  with  her  husband,^^  and  where  by 
the  provisions  of  the  deed  it  clearly  appears  that  the  intent 
was  to  convey  to  her  not  merely  as  a  wife,  but  to  hold  in  her 
own  right  as  an  individual,  then  by  virtue  of  such  individual 
right  she  will  have  the  power  to  dispose  of  her  interest  inde- 
pendent of  her  husband.^^ 

As  the  estate  by  entirety  originated  in  and  depends  upon 
the  marital  relation,  it  logically  and  consistently  follows  that 
it  may  be  destroyed  by  a  legal  separation  of  the  spouses,  and 
so,  it  has  been  held  that  where  the  legal  unity  has  been  broken 
by  a  divorce  the  title  to  the  land  theretofore  acquired  and  held 
by  them  in  entirety  will  thereupon  vest  in  them  as  tenants  in 

62  See  Bertles  v.  Nunan.  92  N.  Y.  64  Robinson,  appellant,  88  Me. 
152;  Farmers',  etc.  Bank  v.  Greg-  17;  Cooper  v.  Cooper,  76  111.  57; 
cry,  49  Barb.  (N.  Y.)  155;  Bates  v.  Hoffman  v.  Stigers,  28  Iowa,  307. 
Seeley,  46  Pa.  St.  248;  Robinson  v.  or.  Jooss  v.  Fly.  129  N.  Y.  17;  and 
Eagle,  29  Ark.  202;  McDuff  v.  Beau-  see  Brown  v.  Baraboo,  90  Wis.  15; 
champ,  50  Miss.  531.  Hunt  v.  Blackburn,  128  U.  S.  464. 

63  Miner  v.  Brown,  133  N.  Y.  308, 


THE    ESTATE.  65 

common.''^'  This  view  has  bL-eii  oxiJiessly  deuied,  however,  in 
some  states  and  the  doctrine  announced  that  after  the  estate 
has  once  vested  it  beconics  absolute  and  is  not  destroyed  nor 
affected  by  tlie  subsecjueut  divorce  of  the  <j;rautees.'*^ 

It  would  also  seem  that,  notwithstanding  the  peculiar 
features  of  this  sjjecies  of  estate,  either  spouse  anay  transfer 
his  or  her  interest  to  tlie  other.  Nor  can  tliis  be  properly 
regarded  as  a  violation  of  the  original  grant  since  its  jirimary 
object  is  that  each  may  be  secure  against  an  impairment  of 
rights  through  the  act  of  either.  Where  this  course  is  per- 
mitted the  effect  is  to  convert  the  estate  into  a  severalty  in 
fee  which  the  owner  may  alien  or  incumber  in  like  manner  as 
other  property.<"^ 

§  39.  Contingent  interests  and  estates.  xVn^-  or  all  of  the 
foregoing  enumerated  estates  may  be  classified  as  vested  or 
contingent;  and  while  sales  and  conveyances  are  usually  made 
with  reference  to  vested  rights,  it  is  not  uncommon  for  parties 
to  contract  with  reference  to  estates  to  be  acquired  in  the 
future  and  resting  wholly  upon  a  contingency.  In  a  very  few 
instances  the  legal  right  to  so  contract  has  been  denied,  and 
courts  have  refused  to  give  effect  to  contracts  so  made,  partic- 
ularly in  the  case  of  sales  of  expectancies  by  presumptive 
heirs.  But  even  where  deeds  of  this  character  can  have  no 
operation  at  law  as  grants,  jet  in  equity  it  is  well  settled  that 
an  instrument  which  {)urports  to  convey  proiJei-ty  which  is  in 
expectancy,  or  to  be  subsequently  acquired,  or  which  is  not  of 
a  nature  to  be  grantable  at  law,  although  inoperative  as  a 
grant  or  conveyance,  will  be  upheld  as  an  executory  agree- 
ment, and  enforced  according  to  the  intent,  if  supported  by 
valid  considerations,  whenever  the  grantor  is  in  a  condition 
to  give  it  effect.«« 

It  was  a  rule  at  common  law,  that  both  contingent  remain- 
ders and  executory  interests  were  only  possibilities,  and, 
therefore,  not  assignable,  though  it  seems  they  might,  as 
possibilities  couj)led  with  an  interest,  be  devised  by  will,  or 

08  Donegan  v.  Donegan,  103  Ala.  537;    Engeart  v.   Kepler,   118   Ind. 

488;  Stelz  v.  Shreck,  128  N.  Y.  263;  34. 

Russell    V.   Russell,    122    Mo.    235;  «»  Bailey  v.  Hoppin,  12  R.  I.  560; 

Hopson  V.  Fowkes.  92  Tenn.  697.  and    see    Jackson    v.    Bradford,    4 

07  Appeal  of  Lewis,  85  Mich.  340.  Wend.  (N.  Y.)  619. 

C8  Donahue  v.  Hubbard,  154  Mass. 


56  THE    SUBJECT-MATTER. 

they  might  be  released  by  a  conveyance  operating  by  way  of 
estoppel.  Yet  it  would  also  seem  that  contracts  and  assur- 
ances relating  to  such  interests,  given  for  a  valuable  consid- 
eration, might  be  enforced  in  equity,  and,  at  the  present 
time,  even  where  the  common  law  rule  as  to  assignability  of 
such  interests  prevails,  it  is  well  settled  that  where  the  con- 
tingency upon  which  the  remainder  is  to  vest  is  not  in  respect 
to  the  person,  but  to  the  event,  where  the  person  is  ascer- 
tained who  is  to  take  if  the  event  happens,  the  remainder 
may  be  granted  and  the  grantee  will  occupy  the  place  of  the 
grantor  w  ith  his  chance  of  receiving  the  estate.'^^ 

Contingent  remainders  are  not  favored,  and,  unless  it 
clearlj'  appears  from  the  language  creating  the  estate  that  it 
is  intended  to  be  contingent,  the  estate  will  be  regarded  as 
vested. 

§  40.  Expectancies  and  naked  possibilities.  Closely  related 
to  the  subjects  treated  in  the  foregoing  paragraph,  and  par- 
taking in  some  measure  of  their  essence,  are  mere  expectan- 
cies and  naked  possibilities  not  founded  upon  a  right  or 
coupled  with  an  interest.  The  law  in  respect  to  this  class  of 
interests,  if  indeed  they  can  justly  be  regarded  as  interests, 
is  variant  and  uncertain.  At  common  law  the  rule  is  abso- 
lute that  such  interests  are  not  assignable  and  this  rule  has 
repeatedly  been  applied  in  this  country.^^  But  opposed  to 
this  is  a  modern  equitable  doctrine,  the  principles  of  which 
are  as  yet  somewhat  uncertain,  which  supports  assignments 
of  expectancies  as  grants  operating  not  in  presenti  but  rather 
as  present  contracts  to  take  effect  in  futuro  and  as  soon  as 
the  subject  matter  shall  have  come  into  or  have  a  potential 
existence.'^2  This  view  now  seems  to  be  sustained  by  the 
volume  of  authority.'^^     The  conveyance,  if  sustained  by  an 

70  Barthalomew  v.  Muzzy,  61  72  Mitchell  v.  Winslow,  2  Story 
Conn.   387;    Smith   v.    Pendell,   19    (c.  ct.)  630. 

Conn.     112 ;     Grayson     v.     Tyler's  73  Lewis    v.    Madison,    1    Munf . 

Admr.,  80  Ky.  363.  (Va.)    303;    Bacon   v.   Bonham,   33 

71  McCalls  Admr.  v.  Hampton,  98  N.   J.    Eq.   614;    Bishop   v.   Daven- 
Ky.  166;   Alves  v.   Schlesinger,  81  port,    58    111.    105;    Varick    v.    Ed- 
Ky.  290 ;  Hart  V.  Gregg,  32  Ohio  St.  wards.    1    Hoff.    ch.    cas.     (N.    Y.) 
502;  Skipper  v.  Stokes,  42  Ala.  255;  382;  Hale  v.  Hollon,  90  Tex.  427. 
Patterson  v.  Caldwell,  124  Pa.  St. 

455. 


THE    ESTATE.  57 

adequate  consideration,  is  considered  as  an  executory  agree- 
ment to  convey  or  as  a  covenant  iur  a  future  conveyances^ 

§  41.  Powers.  A  power,  teclinically  speakin<,^  is  not  an 
estate,  but  is  a  mere  authority,  enabling  a  person,  through 
the  medium  of  the  statute  of  uses,  to  dispose  of  an  interest  in 
real  i)roi)erty  vested  either  in  himself  or  in  another  person."-'"' 

^*  Baylor  v.  Comr.,  40  Pa.  St.  37.        -■>  Burleigh  v.  Clough,  52  N.  H. 

267. 


Art.  III.    The  Title. 

§  42.     Title  generally  considered.        §  47.     Derivative  title — Descent. 

43.  Classification.  48.    Continued — Purchase. 

44.  Methods  of  acquisition   and       49.     Tax  titles. 

disposal.  50.     Color  of  title — Adverse  pos- 

45.  Derivation    and    nature    of  session. 

title.  51.     The  right  to  the  possession 

46.  Marketable  title  defined.  of  title  deeds. 

§  42.  Title  generally  considered.  The  property  or  interest 
which  a  person  may  have  in  lands,  tenements  or  heredita- 
ments, as  has  been  shown  in  the  preceding  article,  is  described 
in  the  comprehensive  tenn  estate;  the  method  of  acquiring 
and  right  of  holding  same  is  denominated  title.  Title,  there- 
fore, is  properly  an  incident  of  estates;  and  although  it  is  cus- 
tomary in  speaking  of  the  transfer  of  real  property  to  allude 
to  a  sale  of  the  title,  yet  as  a  matter  of  fact  the  title  itself  is 
not  really  sold,  nor  does  it  form  in  any  proper  sense  of  the 
term  a  subject  of  barter  or  sale.  The  title  regularly  devolves 
with  a  sale  of  the  estate;  and  no  matter  how  many  outstand- 
ing titles  or  claims  of  title  there  may  be,  they  all  rest  upon 
some  species  of  estate,  and  as  the  estates  merge  the  titles  vest 
by  operation  of  law.  The  title  is  inseparably  connected  with 
the  estate,  and  represents  the  right  or  authority  for  the  enjoy- 
ment of  land,  even  as  the  estate  represents  the  quality  and 
extent  of  such  enjoyment. 

But  while  title,  in  itself,  is  not  the  subject  of  conveyance  by 
the  ordinary  forms  prescribed  by  law  and  only  follows  the 
estate  as  an  incident,  it  is  nevertheless  an  essential  and  dom- 
inating consideration  in  nearly  every  transfer  of  land;  and 
although  nothing  may  have  been  said  concerning  the  title 
during  the  negotiations  attending  the  sale,  the  law  presumes 
that  it  entered  into  the  contemplation  of  the  parties  at  that 
time,  and  raises  an  implied  promise  on  the  part  of  the  vendor 
that  he  possesses  title,  and  that  it  is  of  such  a  character  as  to 
assure  the  vendee  of  a  quiet  and  peaceable  enjoyment  of  the 
property.^  In  common  parlance  this  is  called  a  ''market- 
able title." 

iDelevan  v.  Duncan,  49  N.  Y,  390;  Flynn  v.  Barber,  64  Ala.  193; 
485;    Holland   v.   Holmes,   14   Fla.    Woodruff   v.    Thorne,    49    HI.    88; 

58 


THE    TITLE.  59 

It  is  competent  for  the  parties  to  stipulate  as  to  the  charac- 
ter of  tlic  title,  and  their  agreements  in  this  respect  will  be 
given  a  controlling;  efTicacy  on  all  questions  subsequently 
arising;  but  in  the  absence  of  such  stipulations,  or  of  proper 
evidence  of  an  agreement  respecting  title,  a  marketable  title 
is  always  presunu'd,  and  the  i)urchaser  will  never  be  com- 
pelled to  accept  any  other.-  The  right  to  such  a  title  is 
inherent  in  the  transaction;  it  does  not  grew  out  of  the  agree- 
ment, but  is  given  by  law,  and  such  title  may  be  demanded  by 
the  purchaser  as  a  nuitter  of  legal  right.-"^ 

§  43.     Classification.      Titles  may  be  classified  as    legal  and 

equitable a  distinction  originally  applied  only  to  estates,  but 

now  extensively  used  to  designate  the  manner  of  acquiring 
and  holding  them  as  well.  The  equitable  title  usually  carries 
with  it  the  beneficial  interest  in  the  land,  together  with  the 
incidents  of  ownership,  the  legal  title  being  held  as  a  mere 
naked  trust;  this  is  illustrated  in  the  relations  of  the  govern- 
ment and  a  purchaser  of  public  land  before  patent  issues;  a 
grantee  under  a  land  contract  after  payment  made  and  before 
execution  of  deed;  or  where  the  legal  title  has  bcH^n  conveyed 
to  a  trustee,  the  equitable  ownership  vesting  in  the  beneficiary 
or  cestui  que  trust. 

Custom  has  also  introduced  another  species  of  classification, 
based  on  the  impairments  or  defects  which  may  exist  in  the 
title  asserted  by  the  vendor,  by  which  the  title  is  said  to  be 
bad,  doubtful,  good  or  perfect;  the  latter  two  classes  being 
also  known  as  marketable  titles,  or  those  which  a  court  of 
equity  considers  so  clear  that  it  will  enforce  their  acceptance 
by  a  purchaser.  A  doubtful  title,  on  the  contrary,  is  one  that 
a  court  will  not  go  so  far  as  to  declare  invalid,  but  only  that 
it  is  subject  to  so  much  doubt  that  a  purchaser  ought  not  to 

Moulton   V.   Chafee,   22    Fed.    Rep.  Mich.  396;   Taylor  v.  Williams,  45 

26.    If  the  agreement  does  not  men-  Mo.  80;  Ludlow  v.  O'Niel,  29  Ohio 

tion  the  title  to  be  given,  an  im-  St.  182;  Gill  v.  Wells.  57  Md.  492. 

plication  arises  that  it  is  to  be  free  3  Lounsbury  v.  Locamber,  25  N. 

from  incumbrances;   Newark  Sav-  J.  Eq.  554;   Moulton  v.  Chafee,  22 

ings  Institution  v.  Jones,  37  N.  J.  Fed.  Rep.  26. 

Eq.  449.  The    reader    is    referred    to    the 

2  Mitchell   V.    Steinmetz,    97    Pa.  chapters  on  "Rescission"  and  "Spe- 

St.  254;  Chambers  v.  Tulane,  9  N.  cific  Performance,"  where  the  sub- 

J.  Eq.  146;   Powell  v.  Connant,  33  ject  is  considered  in  detail. 


GO  THE    SUBJECT-MATTER. 

be  compelled  to  accept  it.  The  doctrine  of  marketable  titles 
is  purely  equitable  and  of  modern  origin;  at  law  every  title 
is  marketable. 

The  terms  "bad"  and  ''good,"  as  used  in  this  connection, 
cannot  be  said  to  have  anj'  legal  significance,  for,  notwith- 
standing their  constant  employment,  the  law  does  not  recog- 
nize any  degrees  of  title.  They  may  be  considered  as  colloquial 
expressions  which  by  frequent  iteration  have  gained  a  certain 
currency  in  the  language  of  the  law.  Title  is  simply  title;  the 
muniments  by  which  it  is  sought  to  be  asserted  may  be 
defective  and  for  that  reason  the  title  may  be  considered 
doubtful,  but  there  is  no  good,  better  or  best  in  title,  while  a 
bad  title  is  no  title  at  all. 

§  44.  Methods  of  acquisition  and  disposal.  Elementary 
writers  all  agree  that  there  exists  but  two  modes  of  acquiring 
title,  which  they  denominate  respectively  descp/nt  and  pur- 
chase; the  latter  term  including  every  legal  method  of  acqui- 
sition except  that  by  which  an  heir,  on  the  death  of  an  ances- 
tor, succeeds  to  the  estate  of  the  latter  by  operation  of  law.* 

Descent,  or  hereditary  succession,  was  by  the  common  law 
considered  the  better  title ;  and  when  the  right  of  inheritance 
is  fully  established  by  strict  compliance  with  the  law  relating 
to  descents,  proof  of  heirship,  etc.,  the  title  thus  conferred  is 
of  the  highest  dignity  and  effectual  for  all  purposes.  But 
though  the  title  vests  in  the  heir  by  operation  of  law  imme- 
diately on  the  death  of  the  ancestor,  yet  purchasers  desire  and 
should  have  affirmative  evidence  that  the  person  asserting  the 
same  is  justified  in  so  doing;  and,  in  the  absence  of  probate 
proceedings  or  a  judicial  determination  of  the  rights  of  the 
heirs,  titles  depending  on  descent  are  to  be  viewed  with  jeal- 
ousy and  accepted  with  the  greatest  caution,  and  particularly 
is  this  the  case  where  title  is  asserted  by  descent  by  an  heir  in 
a  remote  degree  from  the  intestate  or  common  ancestor. 

Purchase,  as  has  been  stated,  is  a  generic  term  which 
includes  every  mode  of  coming  to  an  estate  except  by  inherit- 

4  The     common-law     estates     of  seem  to  favor  this  view.     Others 

dower  and   curtesy  have   been  re-  have  made  a  distinction  in  respect 

garded  by  some  as  properly  coming  to    estates   acquired    by    purchase, 

within   the   doctrine   of   descents;  between  titles  created  by  act  of  law 

and    the   statutory   regulations   of  and  those  by  act  of  the  parties, 
many  of  the  states,  would  strongly 


THE    TITLE.  61 

ance,^  thoufjh  in  its  more  limited  sense  it  is  applied  only  to 
the  acTniisition  of  lands  by  way  of  barj^ain  and  sale  for  money 
or  other  consideration."  Neither  law-writers  nor  courts  seem 
to  have  ventured  on  a  more  extended  definition,  if  indeed  one 
can  be  framed;  and  the  one  above  j^iven  has  come  down 
unchann;ed  from  Blackstone,  who  in  turn  borrowed  it  from 
earlier  writers.  There  are  four  princii)al  methods  recof^nized 
of  acquiring  title  by  ])ui'chase,  to  wi( :  by  deed,  devise,  pre- 
scription or  limitation  and  escheat.^  To  these  may  be  added 
title  accruinfj^  throufjjh  operations  of  nature;  as  accretion, 
reliction  and  avulsion,  as  well  as  such  as  result  from  our  polit- 
ical and  civil  relations;  as  eminent  domain,  confiscation  and 
forfeiture.  Some  writers  still  further  extend  the  list  by  the 
addition  of  abandonment,  occupancy  and  estoppel.  The  two 
former  of  these  are  not  known  in  the  United  States,  while  the 
latter  is  not,  strictly  speakinj?,  a  method  of  acquiring  title  at 
all,  but  simply  a  reco<j;nition  of  existing  titles. 

§  45.  Derivation  and  nature  of  title.  The  king,  as  the  head 
and  sovereign  rejjresentative  of  the  nation,  is  by  the  English 
law  the  original  proprietor  or  lord  paramount  of  all  the  land 
in  the  kingdom,  and  the  true  and  only  source  of  title.  From 
the  crown  all  the  lands  in  the  realm  are  held,  either  mediately 
or  immediately,  by  a  tenure,  of  which  fealty  is  the  great  char- 
acteristic. This  doctrine  grew  out  of  the  feudal  system,  by 
which  fealty  was  inseparably  incident  to  the  reversion,  and 
could  never  be  lost  to  the  ultimate  lord.  With  the  assump- 
tion of  independence,  the  state,  in  its  sovereign  capacity,  suc- 
ceeded to  the  titles  of  the  king  and  became  the  proprietor  of 
all  the  lands,  and  hence  all  valid  individual  title  is  derived 
only  from  the  grant  of  the  federal  government;  from  the  state 
government;  or  from  foreign  powers  either  prior  to  the  Revo- 
lution, or  the  subsequent  acquisition  of  the  territory  by  the 
government,  the  vested  rights  of  the  landowner  being  recog- 
nized in  the  latter  case  by  treaty  at  the  time  of  the  cession  or 
by  subsequent  confirmation.  But  the  state  does  not  lend  its 
lands,  like  a  feudal  lord,  nor  has  it  any  tenantry.  Its  patents 
stipuhite  for  no  fealty  or  other  feudal  incident;   and  though 

5  Green  v.  Blanchar,  40  Cal.  194.    was  a  species  of  reversion;   in  its 

6  2  Bouv.  Law  Diet.  395;  Cruise,  present  form  it  is  quite  distinctly 
Dig.  tit.  30.  a  method  of  descent,  the  state  tak- 

1 1n    its    original    form    escheat   ing  as  an  ultimate  heir  in  default 


62  THE    SUBJECT-MATTER. 

title  can  be  deduced  only  from  the  sovereign — the  state — by 
direct  grant  or  confinnation,  yet  when  so  acquired  it  is  held 
in  pure  and  free  allodmm,  being  the  most  ample  and  perfect 
interest  that  can  be  obtained  in  land,  and  denoting  a  full  and 
absolute  ownership,  with  no  duties  to  a  superior  lord,  or 
services  or  fealty  incident  thereto.^ 

§  46.  Marketable  title  defined.  Unless  there  has  been  some 
express  stipulation  as  to  the  character  of  the  title  to  the 
estate  to  be  conveyed,  a  marketable  title  is  always  presumed  ;9 
and  unless  this  fact  can  be  satisfactorily  established  by  the 
vendor,  the  vendee  will  not  be  compelled  to  complete  the  pur- 
chase or  pay  for  the  land.^^  As  a  general  rule,  a  title  which 
is  open  to  judicial  doubt  is  not  marketable,^ ^  although  what  is 
sufficient  ground  for  a  judicial  doubt  cannot  be  conclusively 
reduced  to  fixed  and  determinate  principles,  as  it  depends  to 
a  considerable  degree  upon  the  discretion  of  the  court.^^  jq 
no  case,  however,  will  a  purchaser  be  compelled  to  accept  a 
property  which  he  can  only  acquire  in  possession  by  litiga- 
tion and  judicial  decision j^^  nor  one  the  possession  of  which 
he  must  thus  defend,i^  or  which  would  expose  him  to  the 
hazard  of  a  law-suit.^ ^  Property  subject  to  incumbrance  can 
never  be  imposed  upon  the  purchaser  unless  he  has  so 
agreed;^ 6  but  the  mere  fact  of  incumbrance  does  not  neces- 
sarily defeat  the  vendor's  title,  nor  in  any  proper  sense  render 
it  unmarketable  when  the  incumbrance  is  of  such  a  character 
as  to  admit  of  easy  removal. 

§  47.    Derivative   titles — ^Descent.      Title  by  descent,  though 

of    known    kindred.      For    many  n  Shriver  v.   Shriver,   86   N.   Y. 

years,  however,  it  has  been  classed  575. 

as  a  form  of  purchase  and  is  usu-  12  Aston   v.    Robinson,    49    Miss. 

ally  so  treated  by  the  elementary  348;   Quinn  v.  Roath,  37  Conn.  16. 

writers.  is  Butts   v.    Andrews,    136    Mass. 

8  See   Warvelle   on  Abstracts  of  221;  Charleston  v.  Blohme,  15  S.  C. 
Title,  Chap.  II  passim,  for  a  full  124. 

discussion  of  this  subject.  i*  Shriver  v.   Shriver,   86   N.   Y. 

9  Powell  v.  Conant,  33  Mich.  396;     575. 

Freetly  v.  Barnhart,  51  Pa.  St.  279;  ^-^  Dobbs  v.  Norcross,  24  N.  J.  Eq. 

Taylor  v.  Williams,  45  Mo.  80.  327;   Walsh  v.  Barton,  24  Ohio  St. 

10  Ludlow  V.  O'Neil,  29  Ohio  St.  28.     See  chapter  on   Specific  Per- 
182;    Richmond   v.   Gray,    3    Allen  formance. 

(Mass.),  27;  Gill  v.  Wells,  59  Md.  I'i  Chambers  v.  Tulane,  9  N.  J. 
492.  Eq.  146. 


THE    TITLE.  63 

for  practical  purposes  regarded  as  a  new  title  springing  from 
the  dcatli  of  tlie  ancestor,  and  wliicli,  wlicn  ass(*r<<'d,  must  be 
so  proved,  is  in  reality  but  a  continuation  of  the  ancestor's 
title  which  the  law  casts  upon  the  heir  at  the  moment  of  the 
anccslor's  dcatli.^ '^  The  licir  is  regarded  in  law  as  the  legal 
appointee  to  receive  the  title,  and  this  appointment  he  can 
neither  disclaim  nor  avoid.  The  title  of  the  heir,  therefore,  is 
not  so  much  an  ac(piisition  as  a  succession.  Tlie  deatli  of  tlie 
ancestor  does  not  create  a  title,  but  rather  confirms  in  the  heir 
that  which  was  previously  inchoate,  uncertain  and  defeasible. 
It  was  a  part  of  the  contract  in  the  original  grant  from  the 
state  that  the  grantee  and  his  heirs  might  hold,  possess  and 
enjoy  the  land;  and  unless  the  ancestor  has  exercised  the 
l)Ower  of  alienation  in  liis  lifetime,  the  heir,  upon  his  death, 
succeeds  to  his  rights  in  virtue  of  the  original  agreement,  as 
strictly  as  though  the  power  of  alienation  did  not  exist. 

The  right  thus  acquired  by  the  heir,  upon  the  death  of  the 
ancestor,  is  a  vested  interest,  which  he  may  immediately  con- 
vey by  deed,^^  the  grantee  standing  in  his  place  and  holding 
the  land  as  he  did,  subject  to  the  lien,  if  any,  of  the  adminis- 
trator.io 

§  48.  Continued — Purchase.  While  descent  is  strictly  a 
succession,  i)urcliase,  although  equally  so  in  legal  theory,  is 
usually  treated  as  an  assignment.  Indeed  all  purchasers  by 
deed,  devise,  or  other  act  of  the  parties,  are  classed  as  assigns. 
The  title  so  acquired  depends  for  its  validity  not  only  on 
the  regularity  of  the  method  of  devolution,  but  also  on  the 
rights  of  the  assignors,  for  the  title  asserted  by  a  purchaser 
is  only  a  continuation  of  that  of  his  vendor.  These  matters 
are  generally  disclosed  by  the  muniments,  or  the  operative 
instruments  of  conveyance  that  constitute  the  chain  of  title. 

There  is  practically  no  difference  in  respect  to  the  status 
of  an  heir  and  a  beneticial  assignee.  The  title  of  either  is 
subject  to  the  same  incidents  and  equities  that  affected  it  in 

17  The    term    "ancestor,"    when  i«  Hubbard  v.  Rickart,  3  Vt.  207; 

used  with  reference  to  the  descent  Walbridge  v.  Day,  31  111.  379. 

of  real  property,  embraces  all  per-  ii' Austin   v.   Bailey.   37  Vt.   219; 

sons,  collaterals  as  well  as  lineals.  Van  Syckle  v.   Richardson,  13   111. 

through   whom   an    inheritance   is  171;   Cockerel  v.  Coleman,  55  Ala. 

derived.     Wheeler  v.  Clutterback,  583. 
52  N.  Y.  67. 


64  THE    SUBJECT-MATTER. 

the  Lands  of  the  ancestor  or  assignor.  But  a  jjurchaser  for 
value  and  without  notice  takes  the  land  unaffected  by  latent 
equities,  and  his  title  is  unimpeachable  for  such  causes. 

§  49.  Tax  titles.  It  is  a  fundamental  proposition  that  all 
property  is  subject  to  a  just  proportion  of  the  burdens  of 
taxation  in  return  for  the  protection  which  the  state  affords. 
A  tax  is  in  one  sense  a  personal  debt,  and  may  be  collected 
hy  any  of  the  legal  methods  jHovided  by  law,  should  the 
state  choose  to  resort  to  such,  remedies;  yet  it  is  not  an 
ordinary  debt,  for  it  takes  precedence  of  all  other  demands, 
and  is  a  specific  charge  upon  the  property  against  which,  it 
is  assessed,  without  reference  to  the  matter  of  ownership. 
In  case  of  non-payment  of  the  debt,  the  state,  in  the  exercise 
of  the  perpetual  lien  which  by  virtue  of  its  sovereignty  it 
possesses  upon  all  taxable  lands  within  its  limits,  may  seize 
and  sell  the  land  charged  with  the  tax,  although  there  may  be 
prior  liens  and  incumbrances  upon  it,  and  thus  enforce  pay- 
ment to  the  exclusion  of  all  other  creditors. 

The  title  raised  by  such  sale  is  a  purely  technical  as  distin- 
guished from  a  meritorious  title,  and  depends  for  its  validity 
upon  a  strict  compliance  with  all  the  requirements  of  law.2<> 
If  the  land  claimed  under  such  a  title  was  subject  to  taxation, 
and  the  proceedings  under  the  law  have  been  regular,  and  the 
owner  has  failed  to  redeem  within  the  time  limited  by  law, 
then  the  whole  legal  and  equitable  estate  is  vested  in  the  pur- 
chaser, and  a  new  and  perfect  title  is  established;-^  but  no 
presumption  can  be  raised  to  cure  radical  defects  in  the  pro- 

20  Altes  V.  Hinckler,  36  111.  265;  be  done,  and  in  the  form,  time  and 

Hewes  v.  Reis,  40  Cal.  225;  Rivers  manner  prescribed,  or  the  title  is 

V.  Thompson,  43  Ala.  633.  invalid;    and    in    this    respect    the 

-'1  Smith  V.  Messer,  17  N.  H.  420;  statute  must  be  strictly,  if  not  lit- 

Dunlap   V.   Gallatin   Co.   15    111.   7;  erally,  complied  with.     (2)  But  in 

Jarvis  v.  Peck,  19  Wis.  74;   Cram  determining  what  is  required  to  be 

V.  Cotting,  22  Iowa,  411.    The  fol-  done,   the   statute   must   receive   a 

lowing  principles  or  rules  for  test-  reasonable  construction;  and  where 

ing  the  validity  of  tax  titles  appear  no  particular  form  or  manner  of 

to  be  fairly  deducible  from  the  re-  doing  a  thing  is  pointed  out,  any 

ported  cases:     (1)  Where  the  stat-  mode  which  effects  the  object  with 

ute  under  which  the  sale  is  made  reasonable    certainty   is   sufficient, 

directs  a  thing  to  be  done,  or  pre-  Hall,  J.,  in  Chandler  v.  Spear,  22 

scribes  the  form,  time  and  manner  Vt.  388. 
of  doing  anything,  such  thing  must 


THE    TITLE.  G5 

ceedings,  and  tlio  proof  of  regularity  devolves  on  the  person 
asserting;  the  title.-'^ 

A  tax  title,  tiionj^li  bearing;  some  resemblance  to  titles 
derived  under  judicial  and  execution  sales,  differs  in  this: 
that  the  latter  are  strictly  derivative  titles,  and  dependent  not 
only  on  the  lej'ality  of  the  procedure  of  transfer  but  upon  the 
acts  of  former  owners.  A  tax  title,  on  the  contrary,  from  its 
very  nature,  has  nothing  to  do  with  the  previous  chain  of 
title,  nor  does  it  in  any  way  connect  itself  with  it.  The  x)erson 
asserting  it  need  go  no  further  than  this  tax  deed,  and  the 
former  title  can  neither  assist  nor  prejudice  him.  The  sale 
operates  upon  the  land  and  not  upon  the  title;  and  it  matters 
not  how  many  dilferent  interests  may  have  been  connected 
with  the  title;  if  it  has  been  regularly  sold,  the  property, 
accompanied  by  the  legal  title,  goes  to  the  purchaser.  No 
covenant  running  with  the  land,  nor  warranty,  or  other  inci- 
dent to  the  title,  as  a  title,  passes  to  the  purchaser,  but  he 
takes  it  by  a  new,  independent  and  paramount  grant,  which 
extinguishes  the  old  title  and  all  the  equities  dependent  upon 
it.23  The  statute  usually  pronounces  the  new  title  thus 
acquired  a  fee;  but  this  would  legally  follow,  even  though  the 
statute  were  silent,  where  no  other  estate  is  reserved  in  the 
deed.  It  must  be  understood,  however,  that  the  clause  of  the 
statute  which  provides  that  a  conveyance  resulting  f roan  a  sale 
shall  vest  in  the  grantee  an  "absolute  estate  in  fee-simple" 
does  not  mean  that  such  estate  shall  vest  in  the  grantee  not- 
withstanding the  fact  that  the  law  had  not  been  complied  with 
in  making  tlie  sale,  but  refers  merely  to  the  quantity  of  the 
estate  conveyed  as  distinguished  from  a  lesser  estate.^* 

Owing,  however,  to  the  complexity  of  the  jirocedure 
employed  in  the  enforcement  of  tax  levies,  the  many  errors 
which  often  attend  it,  as  well  as  the  grave  questions  which 
may  arise  even  on  perfect  service,  a  tax  title  is  regarded  as 
among  the  poorest  evidences  of  the  ownership  of  land,  and  is 
always  taken  with  suspicion  and  viewed  with  jealousy.    When 


22  Oliver  v.  Robinson,  58  Ala.  46.  stracts  of  Title,  p.  551  et  seq.,  for  a 

2'i  Neiswanger     v.     Gwynne,     13  discussion  of  this  subject. 

Ohio,  74;    Ross  v.  Barland,  1  Pet.  24  steeple    v.    Downing,    60    Ind. 

(U.  S.)  664.    See  Warvelle  on  Ab-  478. 


66  THE    SUBJECT-MATTER. 

a  tax  dc't'd  is  relied  upon  as  the  foundatiou  of  title,  all  the  ante- 
cedent steps  become  material.^^ 

§  50.  Color  of  title — Adverse  possession.  A  person  is  prop- 
erly said  to  have  color  of  title  to  lands  when  he  has  an  appar- 
ent thonj^h  not  a  real  title  to  the  same,  founded  upon  a  deed 
which  purports  to  convey  them  to  him;^^  and  a  claim  to  real 
property  under  such  a  conveyance,  however  inadequate  it  may 
be  to  carry  the  true  title,  or  however  incompetent  the  grantor 
may  be  to  convey  such  title,  is  strictly  a  claim  under  color  of 
title.-^  Possession  under  color  of  title  for  the  period  of  statut- 
ory limitation  confers  upon  the  holder  a  perfect  title  in  law; 
and  where  one  takes  possession  under  a  deed  giving  color  of 
title,  his  possession  may  be  transferred  to  subsequent  parties, 
and  the  possession  of  the  different  holders  may  be  united  so 
as  to  make  up  the  statutory  period,  the  operation  being  tech- 
nically called  tacking.28  Titles  acquired  in  this  manner  must, 
however,  show  connected  possession  and  a  privity  of  grant  or 
descent.  Those  who  hold  lands  independently  of  previous 
holders,  their  several  possessions  having  no  connection,  can- 
not so  tack  their  possession  as  to  avail  themselves  of  that 
which  has  gone  before.^^ 

§  51.  The  right  to  the  possession  of  title  deeds.  It  was  the 
invariable  custom  in  former  years  and  before  the  passage  of 
the  registration  acts,  upon  all  sales  of  real  property,  for  the 
vendor  to  produce  and  give  to  the  vendee  the  patents  and 
deeds  through  which  he  deraigned  title.  The  possession  of 
the  complete  chain  of  title  deeds  was  the  evidence  which  the 
vendor  produced  of  his  ownership;  and  on  a  sale  the  entire 
series  passed  to  the  purchaser,  as  well  for  the  purpose  of 
showing  ownership  in  the  vendor  as  that  the  vendor  should 
have  no  evidence  of  title  remaining  whereby  he  might  be  able 

25  In  many  of  the  states  the  tax  27  Edgerton  v.  Bird,  6  Wis.  527; 
deed  is  now  received  as  presump-  Hinkley  v.  Greene,  52  111.  223; 
tive  evidence  of  the  regularity  of    Ford  v.  Wilson,  35  Miss.  504. 

the  antecedent  proceedings,  and  in  2s  Cooper   v.    Ord,    60    Mo.    420; 

controversies    concerning    the    tax  Alexander  v.   Stewart,   50   Vt.    87; 

title  the  burden  of  proof  is  thrown  Haynes    v.    Boardman,    119    Mass. 

upon  the  assailing  party.  414. 

26  Seigneuret  v.  Fahey,  27  Minn.  29  Crispen  v.  Hannavan,  50  Mo. 
60;  Rigor  v.  Frye,  62  111.  507;  Hall  536;  Marsh  v.  Griffin,  53  Ga.  320; 
V.  Law,  102  U.  S.  461.  Pegues  v.  Warley,  14  S.  C.  180. 


THE    TITLE.  67 

to  effect  a  second  and  fraudulent  sale.  IJut  the  possession  of 
the  deeds  of  conveyance  is  now  comparatively  of  small  impor- 
tance, as  the  pul)lic  records  disclose  to  purchasers  the  true 
condition  of  the  title,  and  furnish  them,  in  most  cases,  with  all 
the  information  necessary  or  desirable  to  a  full  and  thorough 
understanding  as  to  j)ast  and  present  ownershi[).  For  this 
reason  title  deeds  are  seldom  demanded  and  rarely'  furnished; 
and  so  implicit  has  become  the  reliance  of  the  people  u\H)U 
the  jtublic  records,  that  only  in  exceptional  instances  are  title 
deeds  preserved. 

But,  though  the  possession  of  deeds  has  become  of  minor 
importance,  the  legal  right  to  them  has  not  probably  changed. 
From  a  very  earl}-  period  chancery  compelled  the  delivery  of 
deeds  when  necessary;  and  there  can  be  but  little  doubt  that 
a  ix?rson  properly  entitled  to  their  custody  may  still  come  into 
equity  and  obtain  a  decree  for  a  specific  delivery  of  them  if 
they  be  wrongfully  withheld.^" 

30  Wilson  y.  Rybolt,  17  Ind.  391. 


CHAPTER  n. 
THE  PARTIES. 

Art.  I.  Persons  Sui  Juris. 

Art.  II.  Persons  under  Disability. 

Art.  III.  Persons   Incojmpetent. 

Art.  IV.  Fiduciaries. 

Article  I.    Persons  Sui  Juris. 


§52. 

Generally. 

§61. 

Real  estate  partnership. 

53. 

Vendors. 

62. 

Widow's   dower   in   partner- 

54. 

Vendees. 

ship  realty. 

55. 

Parent  and  child. 

63. 

Syndicates — Joint  stock  com- 

56. 

Expectant  heirs. 

panies. 

57. 

Co-tenants. 

64. 

Corporations. 

58. 

Partners. 

65. 

Municipalities. 

59. 

Continued— What    shall     be 

66. 

Assignees. 

considered          partnership 

67. 

Assignors. 

property. 

68. 

Death  of  contracting  party — 

60. 

Continued — How  affected  by 

Executors     and     adminis- 

the death  of  partner. 

trators. 

§  52.  Generally.  It  is  an  elementary  principle  that  to  every 
legal  contract  there  must  be  two  contracting  parties  compe- 
tent to  contract.  This  is  an  indispensable  element;  and  while 
every  other  essential  requisite  may  be  present,  if  lacking  in 
this  particular,  the  contract  is  without  validity  and  incapable 
of  legal  enforcement.  The  legal  capacity  rto  bind  oneself  to 
do  that  which  he  has  agreed  to  do  must  exist;  and  even  where 
the  obligation  arises  wholly  from  implication,  or  where  only 
passive  acquiescence  is  required,  the  capacity  to  act,  to 
receive,  or  to  become  invested,  agreeably  to  prescribed  legal 
forms,  must  be  present  and  enter  into  the  contract  as  one  of 
its  constituent  and  indispensable  elements.^ 

§  53.  Vendors.  There  must  be  to  every  grant  a  grantor,  a 
grantee,  and  a  thing  granted.  The  latter  has  been  considered 
in  the  preceding  chapter,  and  the  former  will  constitute  the 

iSee  Winslow  v.  Winslow,  52  Ind.  1;  State  v.  Killian,  51  Mo.  80. 
Ind.  8;  Musselman  v.  Cravens,  47 

.68 


PERSONS    SUI    JURIS.  69 

subject  of  the  succeeding  paragraphs  of  this.  If  a  convej-ance 
of  land  has  resulted  as  the  effect  of  a  preliminary  treaty,  and 
represents  the  consummation  of  a  contract  previously  made 
and  concluded,  it  must  be  the  intelligent  and  capable  act  of 
the  i>arties  on  either  side;  if  it  has  been  induced  by  other 
motives,  or  if  the  grantor  has  assumed  to  act  without  the 
actual  concurrence  of  the  vendee,  it  must  still,  so  far  as  he  is 
concerned,  be  the  result  of  the  exercise  of  free  will,  made  by 
one  who  is  capable  of  comprehending  the  nature  and  effect  of 
what  he  has  done.  A  vendor,  therefore,  to  successfully  accom- 
plish the  contractual  undertaking,  must  possess  the  mental 
capacity  to  give  the  necessary  legal  assent;  should  possess 
the  requisite  legal  age  to  render  his  engagements  binding,  and 
should  rest  under  no  disability  depriving  him  of  legal  capacity. 
Possessed  of  these  qualifications  he  may  make  any  disposition 
of  his  property  that  his  judgment,  fancy  or  caprice  may 
prompt,  provided  that  in  so  doing  he  contravenes  no  rule  of 
law  or  principle  of  equity;  and,  in  some  cases,  even  though 
lacking  in  legal  capacity,  whether  through  inadequacy  of  age 
or  legal  disability,  his  grants  are  only  voidable,  and  not,  for 
these  reasons,  void. 

§  54.  Vendees.  The  foregoing  remarks  concerning  the 
vendor  may  in  many  particulars  be  applied  to  the  vendee.  The 
law  presupposes  that  every  contract  is  the  intelligent  act  of 
the  parties  to  it,  entered  into  upon  a  fair  understanding  of  its 
pui'port,  and  consummated  with  a  knowledge  of  its  effects. 
Yet  in  the  conveyance  of  land  it  often  happens  that  the  vendee 
is  but  a  passive  recipient,  with  no  voice,  and  even  without 
mind.  The  conveyance  may  have  been  none  of  his  seeking, 
and  at  the  time  of  its  execution  unknown  to  him;  and  while 
neither  the  burdens  nor  advantages  of  property  can  be  thrust 
upon  a  person  without  his  assent,  yet  as  the  possession  of 
property  is  so  universally  considered  a  benefit  the  absence  of 
express  dissent  is  ordinarily  presumed  to  indicate  assent  and 
concurrence.- 

It  is,  of  course,  essential  to  the  validity  of  every  conveyance 
that  it  be  to  a  grantee  capable  of  taking  and  of  proper  identi- 

2  Mitchell    V.    Ryan,    3   Ohio    St.    Davenport   v.    Whistler,    46    Iowa, 
377;  Bundy  v.  Iron  Co.  38  Ohio  St.    287. 
300;  Bivard  v.  Walker,  39  111.  413; 


70  THE    PARTIES. 

Ikation;  jet  far  less  strictness  is  required  as  to  capacity,  etc., 
in  grantees  than  in  case  of  grantors,  and  few  of  tke  disabili- 
ties which  may  encompass  the  latter  are  applicable  to  the 
former.  Coverture,  infancy,  lunacy,  etc.,  while  they  might 
interfere  with  a  contract  of  sale,  will  yet  form  no  bar  to  a  con- 
veyance, and  persons  laboring  under  such  disabilities  may 
take  and  hold  by  a  grant  equally  with  a  person  sui  juris. 

§  55.  Parent  and  child.  Probably  none  of  the  relations  of 
life  are  subject  to  greater  scrutiny,  in  all  matters  relating  to 
contracts  and  conveyances  of  land,  than  that  existing  between 
parent  and  child.  The  intimate  character  of  the  relationship 
necessarily  involving  many  features  that  are  utterly  wanting 
outside  of  such  relation,  and  the  facility  which  such  relation 
affords  for  the  commission  of  fraud,  both  with  respect  to  the 
parties  and  third  persons,  has  necessitated  this  vigilance  on 
the  part  of  courts,  and  in  some  particulars  created  a  code  of 
law  applicable  to  no  other  class. 

With  respect  to  their  contracts  with  each  other,  where 
both  stand  upon  an  equal  footing  and  both  possess  the  requi- 
site capacity,  they  are  not  distinguishable  from  others;  and 
most  of  the  decisions  involving  the  relation  have  arisen  in 
cases  of  tender  years  on  the  one  hand  or  old  age  and  decrep- 
itude on  the  other,  and  nearly  all  have  turned  upon  the  ques- 
tion of  fraud. 

The  law  has  always  preserved  a  marked  distinction  between 
the  children  of  a  grantor  and  a  stranger;  and  while  the  parent 
has  no  right  to  make  voluntary  gifts  or  donations  to  his  chil- 
dren to  the  disadvantage  of  his  creditors  or  others  having 
legal  or  equitable  claims  upon  him  with  respect  to  his  prop- 
erty, yet  he  may  invest  them  with  the  title  to  property  suit- 
able to  their  circumstances  and  condition  in  life  if  there  be 
no  actual  or  constructive  fraud.^  And  such  conveyances,  not- 
withstanding the  want  of  a  valuable  consideration,  are  always 
regarded  as  meritorious. 

So,  also,  though  a  parent  is  entitled  to  the  services  of  his 
children  while  under  age,  he  may  nevertheless  waive  his  right 
and  make  such  services  the  consideration  of  a  contract  or 
promise,  and  may  in  good  faith  transfer  property  in  the  per- 

3  Salmon  v.  Bennett,  1  Conn.  525;  Nichols  v.  Ward,  1  Head 
(Tenn.),  323. 


PERSONS    SUI    JURIS.  71 

forniauee  of  such  obli^atiuu  without  its  buiiij^  subject  to  a 
chiira  on  the  part  of  the  other  children  to  consider  it  in  the 
light  of  an  advancement.* 

§  56.  Expectant  heirs.  As  a  rule,  all  contin«,'ent  and  execu- 
tory interests  and  contingent  estates  of  inheritance,  or  any 
other  species  of  estate  where  there  is  a  present  existing  right, 
although  to  take  effect  in  the  future,  and  even  then  only  on 
a  contingency,  are  proper  subjects  for  contract  and  sale.''  But 
as  a  conveyance  or  grant,  to  be  effective,  must  be  founded  on 
an  existing  right,  vested  or  contingent,  it  necessarily  follows 
that  in  the  case  of  a  naked  or  remote  possibility,  or  what  the 
law  terms  a  possibility  on  a  possibility,  a  grant  or  attemj^ted 
grant,  as  such,  would  be  inoi)erative  and  void.*'  The  word 
''possibility,''  as  used  in  this  connection,  has  a  specific  mean- 
ing in  law,  and  is  distinguished  from  its  broader  signification, 
where  it  might  properly  include  contingent  and  executory 
interests  which  are  objects  of  limitation,  and  denotes  nothing 
more  than  simple  expectation — a  mere  hope  of  succession, 
unfounded  in  any  limitation,  provision,  trust  or  legal  act  of 
any  kind.  It  is  in  this  sense  that  the  w'ord  is  used  to  charac- 
terize the  expectancy  of  an  heir,  apparent  or  presumptive. 

From  a  very  early  day  the  law  has  refused  to  sanction  or 
give  effect  to  the  conveyance  of  a  naked  possibility,  or  a  possi- 
bility not  coupled  with  an  interest,  even  though  made  for  a 
valuable  consideration,  and  this  principle  has  been  retained 
in  American  jurisprudence.'^  Contracts  or  grants  by  an  heir 
apparent  come  strictly  within  this  rule  and  are  denied  legal 
effect  not  only  for  the  reasons  just  assigned,  but  on  the  further 
ground  that  such  attempted  dispositions  are  frauds  upon  the 
ancestor  and  contrary  to  public  policy.'^  That  is,  if  the  ances- 
tor has  no  knowledge  of  the  contract  he  may  permit  his  prop- 
erty to  pass  under  the  law  of  descent,  believing  that  his  chil- 

4  Murrel  v.  Murrel,  2  Strob.  Eq.  Jones,  Eq.    (N.  C.)   211;   McCall  v. 

(S.  C.)   148.  Hampton.  98  Ky.  166. 

r>  Woods    V.    Williams,    9    Johns.  t  McCall  v.  Hampton,  98  Ky.  166; 

(N.  Y.)  123;  Pelletreau  V.  Jackson,  Skipper    v.    Stokes.    42    Ala.    255; 

11  Wend.  (N.  Y.)   110.  Patterson  v.  Caldwell.  124  Pa.  St. 

G  Hart  V.  Gregg.  32  Ohio  St.  502;  455;  Needles  v.  Needles,  7  Ohio  St. 

Boynton  v.  Hubbard,  7  Mass.  112;  432. 

Baylor  v.   Commonwealth,   40   Pa.  «  McClure  v.  Raben,  133  Ind.  507. 

37;     McDonald     v.     McDonald,     5  And  see  p.  56,  ante. 


72  THE    PARTIES. 

dren  or  heirs  will  receive  the  benefit  thereof,  when,  in  truth, 
it  may  go  to  an  entire  stranger  if  the  contract  is  allowed  to 
have  efifect.  By  keeping  him  ignorant  of  the  facts  he  is  thus 
induced  to  leave  his  property  to  one  he  never  intended  with- 
out his  knowledge  or  consent.  This,  the  courts  hold,  is  a 
fraud  upon  him,  and  a  violation  of  his  rights  of  disposition, 
which  vitiates  the  contract.'^  In  any  event  all  such  contracts 
are  regarded  by  the  law  with  disfavor,  and  generally  one  who 
attempts  the  enforcement  of  same  must  allege  and  prove  that 
there  was  neither  fraud  nor  oppression.^'' 

Notwithstanding,  however,  that  the  conveyance  of  an  expec- 
tancy, as  such,  is  in  effect  a  transfer  of  a  mere  naked  pos- 
sibility, and  hence  inoperative  at  law  to  pass  any  estate  or 
interest  in  the  land,  yet,  when  made  bona  fide  and  for  a  fair 
consideration,  it  will,  it  seems,  be  upheld  in  equity  and 
enforced  as  an  executory  agreement  to  convey .^^  In  a  very 
few  instances  this  has  been  denied,^ ^  ^^^  the  growing  ten- 
dency seems  to  be  the  other  way  and  the  weight  of  authority 
sustains  the  views  here  given.  Nor  is  there  anything  incon- 
sistent in  such  rule,  for  if  the  conveyance  is  made  fairly  and 
without  fraud;  if  there  has  been  no  undue  influence;  if  the 
vendor  was,  at  the  time  of  its  execution,  capable  of  contracting 
in  law,  fully  understanding  its  purport  and  meaning;  and  if 
the  consideration  which  he  received  for  it  was,  under  the  cir- 
cumstances, fair,  if  not  fully  adequate — such  conveyance  if 
properly  made  is  in  full  compliance  with  law%  and  is  inop- 
erative only  because  there  w'as,  at  the  time  of  its  execution, 
no  interest  in  the  vendor  to  which  it  could  attach.  But  the 
right  to  make  contracts  for  the  future  conveyance  of  property 
to  which  the  vendor  has  no  present  title  must  be  conceded; 
and  so,  in  accordance  with  its  familiar  rules,  the  assignment 

sBoynton  v.   Hubbard,    7   Mass.  aid,    5    Jones,    Eq.    (N.    C.)     211; 

112.  Mastin  v.  Marlow,  65  N.  C.  695. 

10  McClure  v.  Raben,  133  Ind.  507.  12  See  Boynton  v.  Hubbard,  7 
And  see  p.  56,  ante.  Mass.  112,  where  Chief  Justice  Par- 

11  Variclc  v.  Edwards,  1  Hoff.  Ch.  sons  refused  to  sanction  an  assign- 
(N.  Y.)  382;  Baylor  v.  Common-  ment  made  by  a  nephew  in  the 
wealth,  40  Pa.  37;  Powers'  Appeal,  life-time  of  his  uncle  of  his  ex- 
63  id.  443;  Lewis  v.  Madisons,  1  pectant  interest  in  that  uncle's  es- 
Munf.  (Va.)  303;  Parsons  v.  Ely,  tate.  And  see  Lowry  v.  Spear,  7 
45  111.  232;   Nesmith  v.  Dinsmore,  Bush   (Ky.),  451. 

17  N.  H.  515 ;  McDonald  v.  McDon- 


PERSONS    SUI    JURIS.  73 

of  a  mere  expectancy  will  be  given  effect  in  equity,  not  as  a 
graiit,^^  but  as  a  contract,  entitling  the  assignee  to  a  specific 
performance  as  soon  as  the  assignor  has  acquired  the  power  to 
perform  it.^* 

So,  too,  an  heir  presumptive  may  release  to  his  ancestor  his 
expected  share  in  the  ancestor's  estate  and  thereby  become 
estopped  from  asserting  any  claim  in  the  event  of  the  ances- 
tor's death  intestate.^  ^ 

§  57.  Co-tenants.  Joint  tenants,  coparceners  and  tenants  in 
common  have  long  been  held  to  stand  in  such  a  relation  of 
trust  and  confidence  towards  each  other  as  to  preclude  them 
from  purchasing  an  outstanding  title  or  incumbrance  for  their 
own  exclusive  benefit,  or  from  setting  up  such  title  as  against 
their  co-tenants.  The  reason  for  this  is  said  to  be  that  they 
come  within  the  principle  which  prohibits  a  party  from  pur- 
chasing an  interest  where  he  has  a  duty  to  perform  incon- 
sistent with  the  character  of  a  purchaser;  that  their  com- 
munity of  interest  produces  a  community  of  duty,  and  raises 
mutual  obligations  to  each  other.  Hence,  such  a  purchase  by 
either  will  inure  to  the  joint  benefit  of  both,  the  purchaser, 
however,  being  entitled  to  contribution  from  his  co-tenant  for 
the  latter's  proportion  of  the  price  paid.^^ 

Where  the  estate  in  co-tenancy  is  of  an  inferior  character, 
as  for  life  or  lives  or  a  term  of  years,  any  of  the  tenants  in 
common  may  purchase  the  superior  estate  without  incurring 
any  obligation  to  his  co-tenants  to  share  in  the  benefit  of  the 
purchase.  The  rule  that  one  standing  in  a  confidential  rela- 
tion to  another  cannot  be  permitted  to  acquire  an  interest  in 
property'  hostile  to  that  of  the  other  does  not  apply  in  such 
a  case  as  the  rule  is  limited  by  its  own  terms,  when  applied  to 
co-tenants,  to  the  acquisition  of  property  in  which  all  of  the 
tenants  are  interested.     Hence,  if  a  tenant  in  common  of  a 

13  If  a  conveyance  is  made  with  Crum  v.  Sawyer,  132  111.  443;  Bai- 
covenants  of  warranty  it  will  oper-  ley  v.  Hoppin,  12  R.  I.  560.  The 
ate  to  pass  the  title  by  estoppel  if  English  cases  hold  the  same  doc- 
the  land  descends  to  the  heir.    Ro-  trine. 

senthal  v.   Mayhugh,   33    Ohio   St.  ^^' Re    Garcelon.    104    Cal.    570; 

158;  Bohn  v.  Bohn,  78  Ky.  408.  Brands  v.  DeWitt.  44  N.  J.  Eq.  545. 

14  Re  Garcelon,  104  Cal.  570;  Col-  lo  Swinburne  v.  Swinburne,  28  N. 
lins  appeal,  107  Pa.  St.  590;  Ridge-  Y.  568;  Picot  v.  Page,  26  Mo.  398; 
way   v.    Underwood,    67    111.    419;  Weaver  v.  Wible,  25  Pa.  St.  270; 


't!4  THE    PARTIES. 

leasehold  estate  should  purchase  the  fee  from  the  landlord 
it  would  not  inure  to  the  common  benefit  nor  could  the  others 
demand  same  by  an  offer  of  contribution.  The  estate  so  pur- 
chased would  not  be  adverse  to  the  leasehold  estate  held  in 
common  nor  would  the  property  acquired  by  the  purchasing 
tenant  be  inconsistent  with  the  terms  of  the  lease.^'^ 

Tenants  in  common  are  considered  as  solely  and  severally 
seized,  their  freehold  interests  being  distinct  and  with  no 
privity  of  estate  as  regards  each  other.^^  Hence  they  may 
convey  and  dispose  of  their  undivided  interests  to  a  stranger, 
the  purchaser  simply  taking  the  same  position  in  relation  to 
the  co-tenants  as  was  occupied  by  his  grantor.^^ 

But  one  tenant  in  common  cannot  convey  any  specific  part  of 
the  land  so  as  to  prejudice  the  rights  or  affect  the  interests  of 
the  other  co-tenants ;-°  hence  a  conveyance  of  part  of  the  com- 
mon land  by  metes  and  bounds  would  be  practically  invalid 
as  against  the  other  tenants  unless  their  assent  is  manifested 
by  some  proper  act.^i  Such  a  deed  is  not  wholly  void,  how- 
ever; it  is  operative  as  against  the  grantor,  and  will  be  effec- 
tive to  convey  such  land  if  the  other  tenants  shall  afterwards, 
by  release  or  some  other  act,  assent,  or  there  be  a  subsequent 
valid  partition  by  which  the  land  so  granted  is  assigned  to  the 

Titsworth  v.  Stout,  49  111.  78;  Brit-  held  that  the  absence  of  objection 

tin  V.  Handy,  20  Ark.  381;  Dray  v.  is    not   proof    of    dissent.       Great 

Dray,  21  Oreg.  59.  Falls  Co.  v.  Worster,  15  N.  H.  449; 

17  Ramberg  v.  Wahlstrom,  140  111.  Duncan  v.  Sylvester,  24  Me.  482. 
182.  The  doctrine  that  a  conveyance  of 

18  Burr  V.  Mueller,  65  111.  258.  a  part  of  the  common  property  by 

19  Fisher  v.  Eslaman,  68  111.  78;  one  tenant  is  invalid  as  against 
Butler  V.  Roys,  25  Mich.  53.  the  others,   is  based,  in  all  cases, 

20  Porter  V.  Hill,  9  Mass.  34;  Pea-  upon  the  fact  that  if  sustained  it 
body  V.  Minot,  24  Pick.  (Mass.)  would  seriously  affect  the  rights  of 
329;  Griswold  v.  Johnson,  5  Conn,  the  other  tenants  in  respect  to  par- 
363;  Duncan  v.  Sylvester,  24  Me.  tition;  compelling  them  to  take  a 
482;  Stark  v.  Barrett,  15  Cal.  368;  share  in  each  of  the  several  parcels 
Mitchell  v.  Hazen,  4  Conn.  495;  of  the  common  property,  such  as 
Markoe  v.  Wakeman,  107  111.  263;  their  co-tenant  might  choose  to 
Shepardson  v.  Rowland,  28  Wis.  mark  out,  instead  of  a  share  in 
108.  the  whole.     Bartlett  v.  Harlow,  12 

21  Jeffries  v.  Radcliff,  10  N.  H.  Mass.  347;  Duncan  v.  Sylvester,  24 
242;  Whitton  v.  Whitton,  38  N.  H.  Me.  482;  Griswold  v.  Johnson,  5 
133.  What  shall  constitute  a  suffi-  Conn.  363;  Smith  v.  Benson,  9  Vt. 
cient  assent  by  the  co-tenants  is  138;  and  see  4  Kent.  Com.  §  368. 
not  well   defined,  but  it  has  been 


PERSONS    SUI    JURIS.  75 

sharo  of  tlu'  j^rantor.--  Even  tlutn^li  a  co-tciiaiit  may  be  in 
the  possession  of  a  specific  portion  of  the  common  tract,  he 
nevertheless  liokls  his  nndivided  interest  tlierein  snbj<'ct  to 
the  contin<;encj  of  the  h»ss  of  it,  if,  on  partition  of  the  general 
tract,  the  special  tract  should  be  allotted  to  one  of  his  co-ten- 
ants. Hence,  as  one  tenant  cannot  apj»roj)riate  to  liiniself  any 
particular  part  of  the  common  i)ropei'ty,  so  it  follows  that  any 
conveyance  of  the  same  by  him  must  be  subject  to  the  ultimate 
determination  of  the  ri^lits  of  tlie  otlier  tenants.  The  gi-antee 
must  take,  therefore,  subject  to  the  contingency  of  the  loss  of 
the  premises,  if,  on  partition  of  the  general  tract,  they  should 
not  be  allotted  to  the  grantor.  Subject  to  this  contingency 
the  conveyance  is  valid,  and  passes  the  interest  of  the 
grantor.23  So  also,  while  such  a  deed  can  have  no  effect  on 
the  rights  of  the  co-tenants  in  respect  to  partition,  it  will  yet 
entitle  the  grantee  to  stand  in  the  place  of  his  grantor  in 
respect  to  the  possession  and  profits  of  that  part.^* 

§  58.  Partners.  Partnership  holdings  in  realty  are,  in 
many  respects,  governed  by  the  same  general  rules  that  apply 
to  tenants  in  common;  and  for  most  purposes,  as  between  the 
partners,  this  is  regarded  as  the  character  of  their  ownership. 
But  as  between  the  partners  and  third  persons,  or  as  between 
themselves  where  the  rights  of  third  persons  are  concerned, 
the  relation  is  strictly  one  of  partnership,  and  the  property  is 
regarded  as  a  partnership  effect;-''  that  is,  as  the  property  of 

2:2  See  Primm  v.  Walker,  38  Mo.  partnership  realty  is  to  be  treated 

94;   Benedict  v.  Torrent,  83  Mich,  the  same  as  personalty  is  not  alto- 

181;   Stark  v.  Barrett,  15  Cal.  370.  gether  true.     For  the   purpose   of 

23  Gates  V.  Salmon,  35  Cal.  576.  properly  adjusting  the  relations  of 

2*  Ballon  V.  Hale,  47  N.  H.  347.  the    partners,    either    as    between 

25  It  is  by  reason  of  this  principle  themselves   or  third   persons   hav- 

that    partnership    realty    acquires  Ing   dealings    with    them   as   such 

the  character  of  personalty  and  is  partners,   it  is  allowed  to  assume 

governed  in  many  respects  by  the  some  of  the  characteristics  of  per- 

general    rules    applicable    to    that  sonalty;   yet  it  must  be  seen  that 

class  of  property.     See  Mauck   v.  no  court  can,  by  an  arbitrary  rule, 

Mauck,  54  111.281;  Scruggs  v.  Blair,  transmute  real  into  personal  prop- 

44   Miss.  406;    Moderwell  v.   Milli-  erty.    So  far.  therefore,  as  may  be 

son,    21    Pa.    St.    257;    Arnold    v.  necessary  to  attain  the  ends  of  the 

Wainwright,  6  Minn.  358.    But  this  partnership   it  may  be  treated  as 

doctrine,    manifestly    incongruous,  personalty,    but    for    every    other 

is  often  pushed   too  far;    and  the  purpose  it  remains  realty,  and   is 

statement,    frequently    made,    that  subject   to   all   the   principles  and 


76  THE    PARTIES. 

the  firm,  considered  as  a  legal  entity,  and  not  the  individual 
property  of  each  member  of  the  firm.  Tlie  effect  of  this  is  to 
render  them  for  some  purposes  joint  tenants,  with  the  right  of 
survivorship  for  all  purposes  of  holding  and  administering 
the  estate  until  the  obligations  of  the  finii  have  been  dis- 
charged. Again,  partnership  differs  materially  from  a  ten- 
ancy in  common  in  reference  to  the  power  of  disposal,  as  well 
as  from  the  further  fact  that  none  of  the  partners  have  any 
claim  to  any  specific  share  or  interest  in  the  real  estate  as  ten- 
ants in  common  have,  but  only  to  the  proportion  of  the  residue 
which  shall  be  found  to  be  due  them  respectively  upon  the 
final  balance  and  adjustment  of  their  accounts,  and  the  liqui- 
dation of  all  claims  upon  the  firm. 

There  is  another  principle  in  relation  hereto  which  prob- 
ably' has  received  more  universal  assent,  and,  as  a  rule,  seems 
to  admit  of  fewer  exceptions,  than  any  other  in  this  branch  of 
the  law,  and  that  is:  that  one  partner  during  the  continuance 
of  the  partnership  has  no  power  to  convey  the  real  estate  of 
the  firm,  either  by  deed  or  assignment;  nor  to  make  any  con- 
tracts in  relation  thereto  specifically  enforcible  against  the 
others;  and,  unless  expressly  authorized,  deeds  so  made  which 
profess  to  transfer  the  property  of  the  absent  partner  or  incur 
liabilities  in  regard  to  the  same  are  absolutely  void  as  against 
the  partner  who  did  not  join.^^ 

It  is  further  to  be  observed  that  partners  in  lands  have  an 
equity  against  each  other  for  the  purpose  of  producing  equal- 
ity among  themselves.  This  equity  fastens  itself  to  and  is  a 
lien  upon  their  respective  interests  in  such  lands;  and  neither 
partner,  nor  a  purchaser  from  him  with  notice,  can  deprive 
his  copartner  of  such  lien.  The  lien  survives  the  death  of  the 
partner,  and  may  be  enforced  by  his  heirs  or  personal  repre- 
sentatives where  the  inequality  between  the  partners  or 
indebtedness  from  one  to  the  other  arose  from  transactions 
accruing  in  the  life-time  of  such  partner.^^ 

§  59.     Continued — What     shall     be     considered     partnership 

laws  applicable  thereto.    See  Black  212;    Jackson  v.   Stanford,   19   Ga. 

V.   Black,   15   Ga.   445;    Scruggs   v.  14;    Goddard    v.    Renner,    57    Ind. 

Blair,   44   Miss.   456;    Foster's   Ap-  532. 

peal,  74  Pa.  St.  391.  Compare  Lowe  27  "Williams     v.     Love,     2     Head 

V.  Lowe,  13  Bush   (Ky.),  688.  (Tenn.),  80. 
26  Ruffner    v.    McConnel,    17    111. 


PERSONS    SUI    JURIS.  77 

property.  It  is  au  old  and  wcU-t'slablished  rule  that  real  prop- 
erty purchased  with  partnership  funds,  and  used  by  the  firm  in 
its  business,  becomes  impressed  with  the  character  of  partner- 
ship property,  and  subject  to  many  of  its  incidents.-^  The 
fact  that  the  legal  title  has  been  taken  in  the  names  of  the 
individual  members  of  the  firm  in  no  way  militates  against 
this  rule,-'*  nor  is  it  absolutely  indispensable  that  the  prop- 
erty should  actually  be  used  for  partnership  purposes,  or  that 
there  shall  have  been  a  positive  agreement  making  it  partner- 
ship property;  for  if  it  has  been  paid  for  with  partnership 
etiects,  it  is  then  a  question  of  intention  whether  the  convey- 
ance is  to  have  its  legal  effect,  and  the  parties  are  to  be 
treated  as  tenants  in  common,  or  whether  the  land  is  to  be 
regarded  as  partnership  property.-''^  To  solve  this  question  of 
intention  extrinsic  evidence  of  the  circumstances  attending 
the  purchase,  or  of  any  agreement  made  at  the  time,  may 
always  be  resorted  to;*"  and  the  manner  in  which  the  accounts 
are  kept,  as  whether  the  purchase  money  was  severally 
charged  to  the  members  of  the  firm,  or  whether  the  accounts 
treat  it  the  same  as  other  firm  property,  purchase  money, 
income,  expenses,  etc.,  are  controlling  circumstances,  and 
from  these  circumstances  an  agreement  may  even  be 
inferred.-"^- 

The  question  derives  its  main  importance  from  the  priority 
to  be  given  to  creditors,  whether  of  the  firm  or  the  individuals 
composing  it,  and  is  essentially  one  of  construction  as  to  the 

28  Hiscock  V.  Phelps,  49  N.  Y.  97;  Holmes  v.  Self,  79  Ky.  297;   Provi- 

Fall  River  Co.  v.  Borden,  10  Cush.  dence  v.  Bullock,  14  R.  I.  353;  and 

(Mass.)  407;  Sigourney  v.  Munn,  7  see  King  v.  Weeks,  70  N.  C.  372; 

Conn.  11;  Uhler  v.  Semple,  20  N.  J.  Indiana   Pottery  Co.   v.   Bates,   14 

Eq.  288;  Ross  v.  Henderson,  77  N.  Ind.  9;  Matlack  v.  James,  13  N.  J, 

C.  170;  Price  v.  Hicks,  14  Fla.  565;  Eq.  128;  York  v.  Clemens,  41  Iowa, 

Bopp  V.  Fox,  63  111.  540;  Ludlow  v.  95;  Dewey  v.  Dewey,  35  Vt.  555. 

Cooper,  4  Ohio  St.  1;  Hunt  v.  Ben-  ^n  A  different  rule  seems  to  pre- 

son,  2  Humph.   (Tenn.)   459;   Bry-  vail  in  Pennsylvania,  where  it  has 

ant  V.  Hunter,  6  Bush  (Ky.),  75.  been  held  that  the  legal  effect  of 

-"■»  Page  v.   Thomas,  43  Ohio  St.  the  deed  cannot  be  affected  by  ex- 

38;  Callumb  v.  Read,  24  N.  Y.  505;  trinsic  evidence.     See  Ebert's  Ap- 

Sherwood  v.  St.  Paul,  etc.  Co.  21  peal,  70  Pa.  St.  79;  Le  Fevre's  Ap- 

Minn.  127;   Pugh  v.  Currie,  5  Ala.  peal,  69  Pa.  St.  122. 

446.  :*2  Fairchild  v.  Fairchild,  64  N.  Y. 

••"1  Fairchild    v.    Fairchild,   64   N.  471. 
Y.  471;  Ware  v.  Owens.  42  Ala.  212; 


78  THE    PARTIES. 

intent  of  the  partners  in  making  the  purchase.  A  third  per- 
son who  purchases  or  takes  from  one  of  the  partners  a  mort- 
gage on  his  individual  interest  in  the  land  will,  if  the  property 
be  partnership  effects,  and  such  purchaser  or  mortgagee  has 
knowledge  of  the  same,  be  postponed  to  the  lien  of  a  fii-m  cred- 
itor. On  the  other  hand,  a  purchaser  has  a  right  to  rely  upon 
the  records;  and  if  the  purchase  is  made  in  good  faith  and  for 
value,  he  will  not  be  affected  by  any  equities  or  even  legal 
rights  of  which  he  has  no  knowledge,  and  which  such  records 
fail  to  disclose,^^  But  while  a  purchaser  or  mortgagee  with- 
out notice,  finding  the  legal  title  in  the  names  of  the  individual 
partners,  will  be  protected  as  a  bona  fide  jjurchaser,  a  judg- 
ment creditor,  it  seems,  can  make  no  such  claim.  His  lien  will 
extend  only  to  the  beneficial  interest  of  the  defendant  part- 
ner, and  this  interest  consists  only  of  the  residuary  share  of 
such  partner  after  the  partnership  accounts  are  settled  and 
the  rights  of  parties  inter  sese  adjusted.^^ 

§  60.  Continued — How  affected  by  death  of  partner.  The 
death  of  one  of  the  partners  operates  as  a  dissolution  of  the 
firm,  and  the  share  or  interest  of  such  deceased  partner  in  the 
partnership  real  estate  descends  to  his  heirs  or  passes  to  his 
devisees  as  in  other  cases  of  common  tenancy.^^  But,  as  part- 
nership realty  possesses  many  of  the  features  of  personalty, 
and,  together  with  other  assets,  is  regarded  as  a  trust  fund 
for  the  payment  of  the  debts  of  the  firm,  the  legal  title  which 
descends  to  the  heirs  or  passes  to  the  devisees  is  impressed 
with  the  same  trust.  The  surviving  partner  is  clothed  with 
the  power  of  executing  this  trust,  and  to  that  end  is  permitted 
to  manage  and  control  such  property'.  If  necessary,  he  may 
sell  it  and  convey  to  the  purchaser  not  only  the  legal  title 

33  Page  V.  Thomas,  43  Ohio  St.  Lang  v.  Waring,  38  Ala.  625;  Davis 
38;  Lovejoy  v.  Bowers,  11  N.  H.  v.  Christian,  15  Gratt.  (Va.)  11; 
404.  Price  v.  Hicks,  14  Fla.  565;  Ross  v. 

34  Page  v.  Thomas,  43  Ohio  St.  Henderson,  77  N.  C.  170;  Little  v. 
38;  York  v.  Clemens,  41  Iowa,  95;  Snedecor,  52  Ala.  167;  Dupuy  v. 
Scruggs  V.  Blair,  44  Miss.  409;  Wil-  Leavenworth,  17  Cal.  262;  Norwalk 
lis  V.  Freeman,  35  Vt.  44 ;  Blake  v.  Nat.  Bank  v.  Sawyer,  38  Ohio  St. 
Nutter,  19  Me.  16;  Duhring  v.Duhr-  339. 

Ing,  20  Mo.  174;   Russell  v.  Miller,  •is  The    English    rule    is    to    the 

26  Mich.  1;  Mauck  v.  Mauck,  54  111.  contrary,    and    partnership     realty 

281;  Fowler  v.  Bailley,  14Wis.  125;  always  retains   the  character  and 

Jarvis    v.    Brooks,    27    N.    H.    37;  qualities  of  personalty. 


PERSONS    SUI    JURIS. 


79 


vested  in  liinisclf,  but  also  the  tMiiiitablt'  estate  which  he  liolds 
as  such  surviving  partner;  and  if  sneli  sah'  is  made  in  j^ood 
faith  and  fainiess,  equity  will  compel  (lie  liolders  of  llie  out- 
standin<;-  legal  litle  to  convey  the  same  to  said  pnrcliaser,  and 
tluKs  complete  the  ownership.-'"' 

It  was  formerly  a  vexed  (piestion  whether,  after  the  disso- 
lution of  the  lirm  by  the  death  of  one  of  the  members,  the 
debts  being  all  settled  and  no  purpose  of  the  firm  requiring  it, 
the  share  of  the  deceased  partner  in  the  laud  should  still 
retain  its  character  of  personally  and  pass  to  his  personal 
representatives,  or  should  descend  as  real  property  to  his 
heirs  at  law.  The  principles  which  -govern  this  branch  of  the 
law  as  administered  by  the  English  courts  of  equity  would 
seem  to  regard  a  deceased  partner's  interest  as  personalty  for 
all  purposes,-^'^  and  many  of  the  earlier  American  cases  hold 
the  same  doctrine;  but  the  current  of  modern  decisions  has 
steadily  tended  in  the  other  direction,  and  the  rule  as  stated  in 


30  Holland  v.  Fuller,  13  Ind.  195; 
Buffum  V.  Buff  urn.  49  Me.  108;  Du- 
puy  V.  Leavenworth,  17  Cal.  262; 
Fowler  v.  Baily,  14  Wis.  129;  Little 
V.  Snedecor,  52  Ala.  167;  Hewitt 
V.  Rankin,  41  Iowa,  35;  Drewry  v. 
Montgomery,  28  Ark.  256;  Willett 
V.  Brown,  65  Mo.  138;  Whitney  v. 
Catten,  53  Miss.  689;  Ludlow  v. 
Cooper,  4  Ohio  St.  9;  Shanks  v. 
Kleine,  104  U.  S.  18. 

37  This  is  one  of  the  artificial  re- 
finements adopted  by  the  chancel- 
lors in  England  for  the  purpose  of 
giving  effect  to  the  agreement  of 
the  partners,  and  is  said  to  have 
originated  in  this  wise:  by  the 
common  law,  on  feudal  reasons, 
land  could  not  be  sold  for  the  pay- 
ment of  debts.  By  virtue  of  legis- 
lative enactment,  the  writ  of  elegit, 
and  statutes  merchant  and  staple, 
subjected  land  to  the  claim  of  cred- 
itors in  a  modified  way;  that  is, 
by  giving  the  creditor  a  right  to 
have  the  land  extended  at  a  yearly 
value,  and  to  have  an  estate  there- 


in, and  receive  the  rents  and  prof- 
its thereof,  until,  at  the  extended 
value,  the  debt  was  satisfied.  This, 
however,  did  not  cause  land  to 
answer  the  purposes  of  trade  and 
become  the  means  of  extended  cred- 
it as  fully  as  if  it  could  be  sold 
outright  like  personal  property. 
Again,  land  held  in  joint  tenancy 
was  subject  to  the  doctrine  of  sur- 
vivorship, by  which,  on  the  death 
of  either  tenant,  the  whole  estate 
belonged  absolutely  to  the  surviv- 
ing tenant.  This  was  a  great  draw- 
back to  the  formation  of  copartner- 
ships in  which  the  business  made 
it  necessary  for  the  firm  to  own 
land.  To  obviate  these  diflSculties, 
the  articles  of  copartnership  in 
many  instances  contained  an  agree- 
ment that  the  land  required  and 
owned  as  part  of  the  stock  in  trade 
should  be  considered  and  treated 
as  personalty,  and  in  others  the 
acts  of  the  parties  furnished  ground 
for  the  inference  that  it  was  the 
intention   to   impress  on  land   the 


80  THE    PARTIES. 

the  oponinj?  of  this  paragraph  may  now  be  considered  as  fully 
settled.  The  rules  of  law  which  gave  rise  to  the  doctrine  in 
England,  and  were  the  foundation  upon  which  it  was  built, 
have  little  oi'  no  ai)plication  in  this  country.  Land  may  be 
seized  and  sold  on  execution  and  the  doctrine  of  survivorship 
is  practically  abolished.  The  reason  of  the  rule  having 
ceased,  therefore,  courts  seem  ever-more  inclined  to  the  opin- 
ion that  the  rule  itself  is  no  longer  applicable. 

§  61.  Real  estate  partnership.  The  subjects  discussed  in 
the  foregoing  paragraphs  have  reference  mainly  to  conditions 
created  by  an  ordinary  commercial  partnership  and  the  rela- 
tions sustained  by  the  parties  thereto  where  lands  have  been 
incidentally  or  casually  acquired  during  the  course  of  the 
partnership  business.  But  not  infrequently  partnerships  are 
formed  for  the  express  puri)ose  of  dealing  in  lands  and  the 
buying  and  selling  of  such  lands  constitutes  the  only  business 
of  the  firm.  The  general  principles  which  govern  the  partner- 
ship relation  do  not  seem  to  be  materially  different  in  cases 
of  this  kind  from  those  which  apply  to  the  ordinary  trading  or 
commercial  partnership.^^ 

§  62.  Widow's  dower  in  partnership  realty.  As  the  heirs 
take  the  legal  title,  so  also  is  the  widow  of  a  deceased  partner 
entitled  to  dower  in  lands  which  constitute  a  portion  of  the 
partnership  assets;  but  as  to  her,  the  same  as  to  the  heirs, 
the  property  is  regarded  as  personalty  for  the  purpose  of  pay- 
ing debts  and  adjusting  equities  between  the  partners,  and  her 
rights  will  only  attach  to  her  deceased  husband's  share  after 
the  payment  of  such  debts  and  adjustment  of  equities.^^ 
Courts  have  even  held  that  it  is  unnecessary  for  the  wives  of 
partners  to  join  with  them  in  the  execution  of  deeds  or  mort- 
gages of  the  partnership  realty,  since  the  dower  right  did  not 

character  of  personalty  in  all  such  ss  See  Thompson  v.  Bowman,  6 
cases;  and  the  courts  inclined  to  Wall.  (U.  S.)  316;  Chester  v.  Dick- 
extend  them  by  construction  and  erson,  54  N.  Y.  1 ;  Ludlow  v.  Cooper, 
implication.  It  was  held  in  equity  4  Ohio  St.  1;  Rovelsky  v.  Brown, 
that  the  agreement  and  intention  92  Ala.  83. 

of  the  parties  should  be  carried  ^"Huston  v.  Neil,  41  Ind.  505; 
into  effect,  and  to  do  so  the  land  Killet  v.  Brown,  65  Mo.  138;  Cob- 
must  be  considered  and  treated  as  ble  v.  Tomlinson,  50  Ind.  550;  Bar- 
personalty,  ry  V.  Briggs,  22  Mich.  201. 


PERSONS    SUI    JURIS.  81 

attach  to  specific  property,  but  only  to  whatever  residuum 
might  be  left  after  final  accounting.'*^ 

^  63.  Syndicates — Joint  stock  companies.  In  the  preced- 
ing panigiiiplis  wf  have  consuh'i'cd  partncrsliips  of  the  ordi- 
nary character  where  each  partner  is  the  agent  of  his  finn  and 
has  jxTsonal  coniact  with  and  control  over  its  affairs  and  a 
vested  right  of  possession,  in  common  with  his  copartners,  in 
the  property  of  tlie  finn.  But  of  late  years  there  has  sprung 
np  a  new  species  of  joint  adventure  in  tlie  i)ui'chase  and  sale 
of  lands  as  a  marketabje  commodity,  variously  known  as 
"syndicates,"  "land  associations,"  etc.  These  associations  are 
voluntary  in  character  and  in  practice  more  nearly  resemble 
what  are  known  as  joint  stock  companies  than  any  other  form 
of  business  relation.  In  some  states,  where  the  formation  of 
such  companies  is  expressly  permitted,  they  are  so  conducted. 
The  effect  of  such  association  both  as  between  the  adventur- 
ers and  those  with  whom  they  may  sustain  business  relations 
has  freciuently  occasioned  much  discussion.  As  a  general 
proposition  such  associations  maj'  be  classed  as  partnerships 
and  to  them  many  of  the  general  rules  of  partnership  are  fully 
applicable,^! 

The  articles  of  association  will,  of  course,  go  far  to  deter- 
mine the  character  which  the  members  sustain  both  toward 
each  other  and  to  the  public,  but  where,  as  is  generally  the 
case,  the  capital  is  contributed  on  the  basis  of  a  specific  sum 
for  each  share  in  the  enterprise,  the  lands  purchased  being 
held  and  managed  for  the  joint  account  by  a  trustee,  and  the 
interest  of  members  or  shareholders  is  limited  to  a  participa- 
tion in  whatever  profits  may  be  realized  on  the  company's 
ventures,  the  shares  are  simply  personal  property.  As  a  rule 
the  holders  of  such  shares  possess  no  estate  in  or  title  to  the 
land  purchased  by  the  trustee,  as  tenants  in  common  or  other- 
wise, and  they  can  neither  convey  nor  incumber  it.  In  case 
of  the  death  of  a  shareholder,  his  shares  will  go  to  his  personal 
representatives,  and  their  interest  as  such  shareholders  will 
be  exactly  the  same  as  his  was  while  li^ing.  His  widow  will 
take  no  dower  or  other  rights  in  the  lands,  and  the  business 
of  the  company  will  not  be  appreciably  affected.     So,  too,  a 

•40  Huston  V.  Neil,  41  Ind.  505.         Spencer  v.  Jones,  92  Tex.  516. 
41  Jones  V.  Davies,  60  Kan.  309 ; 

6 


82  THE    PARTIES. 

shareholder  may  sell  and  transfer  his  holdings  without  con- 
sultation with  his  associates  and  \^thout  impairing  the  power 
of  the  trustee  or  th(*  existence  of  the  company.'*^ 

On  the  other  hand,  if  the  purchase  is  made  with  a  view  of 
specific  division  of  the  land  among  the  shareholders,  then 
they  become  tenants  in  common  and  they  stand  toward  the 
trustee  in  the  relation  of  cestui  que  trusts.  In  such  event  the 
usual  incidents  follow  their  equitable  ownership. 

§  64.  Corporations.  Among  the  original  powers  insepara- 
bly incident  to  every  corporation  was  that  of  purchasing  lands 
and  of  holding  them  for  the  benefit  of  themselves  and  their 
successors.'*^  gut  this  common-law  right  was  restrained  in 
England  at  a  very  early  day  by  a  series  of  laws  called  "stat- 
utes of  mortmain."  These  laws,  it  is  said,  were  designed  to 
repress  the  grasping  and  rapacious  spirit  of  the  church,  which 
was  absorbing  in  perpetuity  the  best  lands  in  the  kingdom. 
They  were  called  statutes  of  mortmain  because  their  object 
was  to  prevent  the  holding  of  lands  in  the  dead  hand  of 
ecclesiastical  corporations,  which,  being  composed  of  mem- 
bers dead  in  law,^^  rendered  the  property  unproductive  to  the 
feudal  lord  as  well  as  to  the  public.^^  This  system  of 
restraint,  though  originally  confined  to  religious  corporations, 
was  subsequently  extended  to  civil  or  lay  corporations  as  well. 

The  English  statutes  of  mortmain  have  never  been  re-enacted 
in  this  country,-*^  though  in  some  states  they  have  been  held 
to  have  effect  so  far  as  the  changed  conditions  of  our  political 
system  would  allow;  yet  their  policy  has  been  retained,  and  is 
manifest  in  the  general  and  special  enactments  of  every  state. 
The  right  of  corporations  to  acquire  and  transmit  property  is 
now  generally  regarded  as  a  statutory  one  in  the  state  of  their 
creation,*^  and  in  other  states  is  based  only  upon  the  comity 
between  the  states,*^    In  the  latter  case  it  is  a  voluntary  act 


i2  Re  Oliver's  Estate,  136  Pa.  St.  45  i  Black.  Com.  479;   Co.  Lit.  2 

43;  Jones  v.  Davies,  60  Kan.  309;  b;  Ang.  &  Ames,  Corp.  §  148. 

Spencer  v.  Jones,  92  Tex.  516.  -ig  Except  by  the  state  of  Penn- 

43  1    Black.    Com.    475;    2    Kent,  sylvania. 

Com.  281.  *"  State  v.  Marshfield,  23  N.  J.  L. 

44  Entering   a  monastery   or   re-  510;  Downing  v.  Marshall,  23  N.  Y. 
ligious  community  was  one  form  of  366. 

civil  death.  •"*  Carroll   v.  East   St.   Louis,  67 


PERSONS    SUI    JURIS.  83 

of  i,n-a((*  of  llu'  sovcrt'iy;!!  powcr,^''  and  in  inadmissible  when 
contrary  to  its  policy  or  prejudicial  to  its  interests.'^'^ 

§65.  Municipalities.  A  iniiiiicipal  corijoration,  while  it 
may  no!  accjiiirc  title  to  lands  for  speculative  jmnhases,  has 
a  right  to  i)iir(has('  and  hold  such  as  it  may  need  for  the  lej;it- 
imate  uses  of  the  jx-ople,  and  when  such  lands  are  no  lonj^er 
required  may  sell  and  dispose  of  same  in  much  the  same  man- 
ner as  a  j)rivate  proprietor.  Very  frecpiently  a  municipal  cor- 
poration in  ac(iuirin<f  lands  obtains  only  a  usufructuary  right 
therein  under  the  power  of  eminent  domain  or  through  an  act 
of  dedication.  This  is  very  generally  the  c^ise  where  the  land 
is  used  for  the  convenience  of  jjublic  travel  or  recreation. 
While  the  land  is  so  used  no  ])ower  of  sale  can  be  exercised, 
and  in  case  of  diversion,  abandonment  or  vacation  the  jjosses- 
sion  reverts  to  the  owner  of  the  fee.  It  would  seem,  how- 
ever, that  if  the  munici])ality  possesses  an  absolute  title  to  its 
streets,  parks,  etc.,  with  power  to  vacate  them,  it  may,  upon 
regular  vacation  had  and  a  payment  or  tender  of  fair  dam- 
ages, if  any,  to  abutters  or  owners,  grant  or  sell  the  land  thus 
vacated  to  private  parties.^! 

§  66.  Assignees.  When  a  contract  of  sale  has  been 
assigned,  the  vendor  not  being  a  party  to  the  assignment,  no 
duty  devolves  on  the  vendor  to  hunt  up  the  assignee  to  tender 
a  deed:  it  is  sufficient  if  he  tenders  it  to  the  original  vendee; 
and  it  is  the  duty  of  the  assignee  to  make  a  tender  of  the 
money  and  demand  a  deed  at  or  within  the  time  designated  in 
the  contract,  if  time  is  of  the  essence  of  the  agreement,  or 
within  a  reasonable  period  if  time  is  not  material;  and  if  the 
assignee  fails  to  do  so  the  vendor  may  treat  the  contract  as 
abandoned,  and  equity  cannot  be  invoked  by  the  assignee  to 
enforce  a  specific  performance.-'*- 

It  is  further  to  be  observed  that  the  assignee  of  a  bond  or 
agreement  for  conveyance,  being  only  the  jjurchaser  of  an 
equity,  will  take  such  title  burdened  with  all  its  imperfections 

III.  568;  St.  Clara  Academy  v.  Sul-  si  See    Lindsay    v.    Omaha,    30 

livan.  116  111.  375.  Neb.  512;   Dempsey  v.  Burlington, 

'0  Ducat  V.  Chicago,  48  111.  172;  66  Iowa  688. 

State  V.  Fosdick,  21  La.  Ann.  434.  r-s  Hedenberg  v.  Jones,  73  111.  149. 

50  Carroll  v.   East  St.   Louis,  67 
111.  568. 


84  THE    PARTIES. 

and  subject  to  any  equities  or  defenses  that  may  exist  against 
it;  and  this,  too,  notwithstanding  he  has  i)urchased  in  good 
faith,  for  a  valuable  consideration,  and  without  notice 
thereof.^^  A  subsequent  purchaser,  it  is  true,  will  be  pro- 
tected against  latent  equities,  but  this  protection  extends  only 
to  those  who  by  conveyance  have  been  clothed  with  the  legal 
title.  The  rule,  stated  in  a  more  comprehensive  form,  is  that, 
as  between  jjarties  holding  equal  equities,  courts  will  not 
interfere  to  change  or  affect  the  legal  title  or  the  rights  of  the 
parties  at  law,  simply  because  nothing  is  gained  in  equity 
thereby,  the  one  having  as  good  right  in  equit}-  as  the  other. 
In  all  cases  where  neither  party  has  the  legal  title,  and  the 
equities  are  equal,  the  well-known  maxim  prevails  that  he 
who  is  first  in  time  is  first  in  right.-''^ 

A  deed,  that  is  an  instrument  under  seal,  is  not  essential 
to  the  transfer  of  a  purchaser's  interest  in  a  contract  for  the 
sale  of  land,  for  while  a  vendee's  interest  is,  for  many  pur- 
poses, regarded  as  real  property,  yet  such  interest  is  purely 
equitable  and  will  pass  by  simple  assignment.^^ 

It  is  customary  to  draw  contracts  of  purchase  with  a  special 
inclusion  of  the  heirs,  executors,  administrators  and  assigns 
of  the  respective  parties.  An  assignee  of  such  a  contract, 
however,  is  not  personally  liable  for  the  unpaid  purchase 
price.  The  land  in  his  hands  may  be  charged  with  a  vendor's 
lien  and  same  may  be  sold  in  satisfaction  of  such  lien,  but 
no  compulsory  payment  can  be  exacted  from  him  nor  will  a 
judgment  for  deficiency  lie  in  case  the  vendor's  lien  is  fore- 
closed. In  the  absence  of  any  express  agreement  on  the  part 
of  the  assignee  the  stipulations  of  the  contract  of  sale  with 
respect  to  purchase  money  must  be  regarded  as  a  personal 
covenant  of  the  original  vendee.^^ 

§  67.  Assignors.  While  the  assignee  of  a  bond  or  agree- 
ment to  convey  takes  it  subject  to  any  equities  that  may  exist 
against  the  assignor,  yet,  if  the  assignment  is  absolute  and 
unconditional  and  made  upon  a  valuable  consideration,  the 
assignor,  where  there  is  no  stipulation  to  that  effect,  under- 

■"'3  Smith  V.  Tucker,  25  Tex.  60;  ss  Fruhauf  v.  Bendheim,  127  N. 

Follett  V.  Reese,  20  Ohio  546.  Y.  587. 

54  Anketel  v.  Converse,  17  Ohio  ■''•e  Lisenby   v.   Newton,    120   Cal. 

St.  11;  Elstner  v.  Fife,  32  Ohio  St.  571. 
373. 


PERSONS    SUI    JURIS.  85 

takes  by  implicatiou  that  he  is  the  owner  of  the  iustniment, 
and  has  an  indefeasible  right  to  demand  what  the  bond  or 
agreement  calls  for.  If  he  has  not  such  right,  there  is  a 
breach  of  this  implied  undertaking  the  moment  the  assign- 
ment is  made;  and  it  is  not  necessary  to  fix  his  liability  that 
this  want  of  right  in  the  assignor  should  be  established  by 
suit.  And  it  seems  that  though  the  assignee  receives  it  with 
notice  or  knowledge  of  the  adverse  claims  of  other  i)arties,  if 
he  did  not  agree  to  risk  the  claims  of  such  third  persons,  he 
may  still  recover  against  his  assignor;  the  undertaking 
created  by  the  assignment  being  sunicicully  comprehensive  to 
impose  a  responsibility  against  such  claims  in  the  absence  of 
an  express  waiver.''*^ 

But  this  is  the  full  extent  of  the  assignor's  liability.  There 
is  no  implied  covenant,  on  his  part,  of  title  to  the  land  in  the 
vendor;  all  that  can  be  implied  is  a  warranty  that  the 
assignor  owned  the  contract,  and  had  the  right  to  assign  it, 
and  that  the  signatures  thereto  are  genuine.^^ 

§  68.  Death  of  contracting  party — Executors  and  admin- 
istrators. It  is  a  well  established  presumption  of  law  that 
where  a  party  makes  a  contract  he  intends  to  bind  his  per- 
sonal representatives — executors  and  administrators — unless 
the  contract  is  one  which  calls  for  some  personal  act  or 
quality  of  the  contractor.  This  presumption  applies  with 
much  force  to  contracts  for  the  purchase  of  land  and  the 
personal  representatives  of  the  contractor  will  usually  be 
required  to  cojnplete  his  contract  in  the  event  of  his  prior 
death.  It  is  immaterial  whether  such  representatives  are 
named  or  referred  to  in  the  contract,  for  they  are  but  a  con- 
tinuation of  the  deceased  for  the  purposes  of  the  final  adjust- 
ment of  his  affairs,  and  his  contracts  are  generally  enforcible 
against  them  to  the  extent  of  the  assets  which  may  come  to 
their  hands.'''' 

5T  Emerson    v.    Claywell,     14  B.        ^'!>  Chamberlain  v.  Dunlop,  126  N. 

Mon.  (Ky.)  18.  Y.   45;    Smith   v.   Wilmington,  etc. 

5s  Thomas   v.    Barton,   48   N.  Y.    Co.,  83  111.  498;  McClure  v.  Gamble, 

193.  27  Pa.  St.  288. 


Arttple  TT.    Persons  Under  Dtsabtlttt, 

§  69.     Aliens.  §  71.     Married  women. 

70.     Infants.  72.    Husband  and   wife. 

§  69.  Aliens,  liy  the  law  of  nations,  a  contract  between  a 
citizen  and  an  alien  enemy  is  void  and  incapable  of  legal 
enforcement.^  This  is  the  universally  recognized  rule,  and 
proceeds  from  the  principle  that  it  is  impolitic  and  dangerous 
to  permit  an  enemy  to  recover  or  obtain  from  a  citizen  money 
or  other  property  which  may  tend  to  diminish  the  resources 
of  the  country  for  defense,  or  perhaps  be  used  in  hostility  to 
it.  But  further  than  this  it  is  impossible,  owing  to  the  diver- 
gent character  of  local  laws,  to  formulate  any  rule  in  regard 
to  aliens  that  shall  be  of  general  application  in  all  parts  of 
the  Union.  There  are  few  topics  which  have  been  subjected 
to  more  legislative  tinkering  and  laws  relating  thereto  are 
constantly  being  changed. 

It  was  formerly  held  to  be  against  public  policy  to  allow 
any  person  owing  no  allegiance  to  the  government  to  own 
lands  within  its  jurisdiction;  and  this  doctrine  still  prevails, 
though  modified  somewhat  in  its  harshness,  in  a  number  of 
the  states.  The  rule  grew  out  of  the  narrow  insular  policy 
of  early  English  law,^  but  the  tendency  now  is  in  the  con- 
trary direction,  and  the  enlightened  policy  of  the  age  has  been 
to  remove  all  restrictions  from  the  transfer  of  land.  In  a 
majority  of  the  states  aliens  may  take,  hold,  transmit  and 
convey  in  the  same  manner  as  a  citizen  ;3   in  a  few  the  privi- 

1  Brooke  v.   Filer,   35   Ind.   402 ;  void,  there  are   cases  which  hold 

Fisher  v.  Kurtz,  9  Kan.  501;  Clem-  that   the    rule    of    non-intercourse, 

ents  V.  Graham,  24  La.  Ann.  446;  as  between  belligerents,  has  no  ap- 

McCormick  v.  Arnspiper,   38   Tex.  plication  to  the  conveyance  of  real 

569;    Hill  v.  Baker,  32   Iowa,  302.  property  situated  in  one  belligerent 

The  fact  that  the  agent  selling  the  territory  by  a  citizen  of  another, 

property  was  within  the  section  to  Shaw  v.  Carlile,  9  Heisk.  (Tenn.) 

which    the    vendee    belonged    has  594;    Conrad  v.  Waples,   96   U.   S. 

been  held  not  to  vary  or  alter  the  290. 

rule.    Dillon  v.  United  States,  5  Ct.  -  Since  abolished  in  England. 

of  CI.  586.     But  while  the  volume  ^  This   is   the   case    in   Alabama, 

of    authority    holds    that    convey-  Colorado,    Florida,    Illinois,    Iowa, 

ances  of  land  to  alien  enemies  are  Kansas,  Maine,  Massachusetts,  Min- 


PERSONS    UNDER    DISABILITY.  87 

lege  is  conliued  specilieallv  to  alieu  friends;'  iu  otliers  to 
aliens  actually  resident  in  the  state,^  or  the  United  States.** 
and  in  some  cases  is  only  extended  to  resident  aliens  who 
have  declared  their  intention  of  becoming  citizens."^  Again, 
other  states,  while  conceding  the  privilege  of  the  acquisition 
by  purchase,  deny  the  right  of  inheritance,*^  or,  if  this  is  jx-r- 
niitted,  compel  the  alien  to  make  his  claim  of  property  within 
a  limited  time,^  or  limit  the  period  during  which  he  is  allowed 
to  hold  \0^  In  a  few  states  the  amount  and  value  is  limited,^^ 
and  in  one  an  alien  is  practically  debarred.' - 

The  rule  of  the  common  law  peraiits  an  alien  to  take  land 
by  purchase,^ 3  either  deed  or  devise,^ ^  and  to  hold  it  against 
all  persons  but  the  state  ;^'^  and,  as  the  disabilities  of  the 
alien  rest  upon  the  fact  of  alienage  and  not  upon  his  character, 
there  is  practically  no  distinction  in  this  respect  between  an 
alien  friend  and  an  alien  enemy.' «  The  title  held  by  him  is 
not  subject  to  collateral  attack,''^  and  may  be  sold  and  con- 
veyed before  any  action  has  been  taken  by  the  state,  and  the 
purchaser  will  hold  the  same  in  all  respects  as  though  the 
conveyance  had  been  made  by  a  citizen.^^  It  is  a  further  rule, 
however,  that  an  alien  can  acquire  no  title  by  operation  of 
law.  Having  no  inheritable  blood  he  is  incapable  of  taking 
by  descent;'^  and  where  he  stands  in  such  a  position  that  he 

Besota,   Mississippi,   Missouri,   Ne-  12  Vermont. 

braska,  North  Carolina,  Ohio,  Ore-  13  Doe  v.   Robertson,   11  Wheat. 

gon,  Rhode  Island  and  Wisconsin.  (U.  S.)    332;    Montgomery  v.  Dor- 

•4  This    is   so   of   New   York   and  ion,  7  N.  H.  475;    Smith  v.  Zaner, 

Virginia.  4  Ala.  99;  Sheaffle  v.  O'Neil,  1  Mass. 

r-  As  in  Arkansas,  Michigan  and  256. 

New  Hampshire.  '*  Fox  v.  Sauthack,  12  Mass.  143; 

6  Connecticut.  Guyer  v.  Smith,  22  Md.  239. 

T  Delaware,   Kentucky  and   New  I'-Ramires  v.  Kent,  2  Cal.  558; 

York.  Phillips  v.  Moore,  10  Otto  (U.  S.). 

8  As  in  Kentucky.  208;    Scanlan   v.  Wright.   13    Pick. 

n  California  requires  proof  in  five  (  Mass.)   523. 

years.  i'' Read   v.   Read,   5   Call    (Va.), 

i»As  in  Indiana,  where  he  is  al-  207;    Stephens'  Heirs  v.   Swann,  9 

lowed  only  eight  years  after  final  Leigh  (Tenn.),  404. 

settlement  of   the   estate;    and   in  17  Norris  v.  Hoyt,  18  Cal.  217. 

Illinois,  where  he  is  restricted  to  i'*  Halstead  v.  Commissioners,  56 

six  years.  Ind.   363;    Montgomery  v.   Dorion. 

11  Georgia,      Pennsylvania     and  7  N.  H.  475. 

Wisconsin.  lo  Mussey  v.  Pierie,  24  Me.  559 ; 


88  THE    PARTIES. 

would  take  as  heir  but  for  his  alienage,  the  title  vests  in  the 
next  of  kin  capable  of  inheriting,  or  escheats  to  the  state.^o 

But  these  rules  now  possess  little  efficacy,  and  are  state- 
ments of  the  law  as  it  was  rather  than  as  it  is.  A  clearer 
perception  of  the  rights  of  property  now  prevails,  and  a  more 
enlightened  spirit  of  public  policy  has  swept  away  the  greater 
portion  of  the  arbitrary  and  ofttimes  unjust  discriminations 
and  restrictions  that  formerly  hampered  the  acquisition  and 
sale  of  landed  estates.  In  most  of  the  states  an  alien  is  not 
distinguished  from  a  citizen,  so  far  as  respects  his  rights  of 
property  and  his  ability  to  make  and  enforce  contracts  in 
regard  to  the  same;  and,  generally,  for  the  procurement  of 
his  rights  or  the  redress  of  his  wrongs  he  stands  on  the  same 
ground  as  the  citizen,  equal  before  the  law.  That  such  should 
be  the  law  seems  only  in  consonance  with  modern  ideas  of 
justice,  and  that  such  is  the  law  is  attested  by  the  statute 
books  of  many  states;  yet,  within  a  very  few  years,  a  reac- 
tionary spirit  seems  to  have  set  in,  induced  by  the  aggressive 
attitude  of  numerous  wealthy  foreigners,  who,  by  purchasing 
and  retaining  large  tracts  of  land  in  the  western  states  and 
territories,  have  endeavored  to  plant  in  the  United  States  the 
system  of  landed  estates  that  has  become  so  odious  in  many 
parts  of  Europe.  The  principle  of  ''landlordism,"  as  under- 
stood by  the  people  of  Great  Britain,  is  certainly  not  in  accord 
with  the  genius  and  spirit  of  our  institutions,  and  its  blighting 
effects  upon  the  peasantry  of  the  old  world  are  only  too 
apparent  even  at  this  distance.  That  some  of  the  states, 
alarmed  at  the  concentration  of  thousands  of  their  broad  acres 
in  the  ownership  of  the  subjects  of  a  foreign  power,  and  view- 
ing with  apprehension  the  reduction  of  its  own  citizens  to  the 
grade  of  tenants  of  a  foreign  landlord,  should  have  taken 
steps  to  check  the  evil,  is  not  strange;  and  hence  we  occa- 
sionally find  tolerant  states,  which  for  years  have  removed 
every  bar  to  the  acquisition  of  its  lands,  passing  stringent 
laws  to  restrict  the  purchase  of  land  by  aliens.^i 

§  70.     Infants.     The  age  of  legal  competency  has  been  gen- 

Orr  V.  Hodgson,  4  Wheat.   (U.  S.)  21  The    federal    constitution    no- 

453.  where  defines  citizenship,  but  the 

20  Jackson  v.  Jackson,  7   Johns,  fourteenth     amendment     provides 

(N.  Y.)  214;  White  V.  White,  2  Met.  that  "all  persons  born  or  natural- 

(Ky.)  185.  ized  in  the  United  States,  and  sub- 


PERSONS    UNDER    DISABILITY.  89 

crallv  fixed  by  the  stahitc  at  twenty-one  years ;22  and,  except 
under  certain  limitations,  persons  who  have  not  attained  thi.s 
age  are  incapable  in  law  of  making  binding  contracts.  By  the 
technical  rules  of  the  common  law  in  cases  of  executory  con- 
tracts the  infant  may,  in  general,  not  only  refuse  to  [MM'form 
them  during  his  infancy,  but  may  disathrm  them  after  he 
comes  of  age,  leaving  the  other  party  without  a  remedy;  and 
even  when  the  contract  has  been  executed,  the  right  of  dis- 
affirmance may  still  be  exercised  either  during  minority  or 
within  a  certain  period  after  attaining  majority.  These  are 
the  universally  recognized  rules  in  regard  to  contracts  gen- 
erally; and  under  them  a  contract  by  a  minor  for  the  jmr- 
chase  or  sale  of  land  cannot  be  enforced  against  him,  if  he 
sees  fit  to  repudiate  it  after  attaining  his  majorit^^  That  the 
contract  has  been  executed  does  not  materially  alter  the  status 
of  the  parties;  for  the  same  reasons  that  permit  the  infant  to 
repudiate  his  executory  contracts  allow  him  to  disaffinn  such 
as  have  been  executed,  and  no  conveyance  made  by  him  during 
his  minority  will  be  binding  upon  him  after  he  arrives  at 
age.23  During  the  interval  between  the  execution  of  the 
instrument  and  the  attainment  of  majority,  the  contract  op 
conveyance  can  neither  be  said  to  be  void  or  valid;  nor  can 
any  act  of  his  impart  to  it  either  character.  It  is  simply 
voidable,  and  so  remains  until  he  shall  decide  the  question 
for  himself  after  he  becomes  of  age.-^ 

The  rule  appears  to  be  inflexible;   and  it  makes  no  differ- 

ject  to  the  jurisdiction  thereof,  cation  of  the  accepted  principles 
are  citizens  of  the  United  States  governing  the  status  of  infancy. 
and  of  the  state  wherein  they  re-  2,-i  Harrod  v.  Meyers,  21  Arli.  592; 
side."  Congress  has  also  furnished  Cummings  v.  Powell,  8  Tex.  80; 
a  definition  in  section  1992  of  the  Green  v.  Green,  69  N.  Y.  553;  Bos- 
Revised  Statutes,  which  says,  "all  ton  Bank  v.  Chamberlin,  15  Mass. 
persons  born  in  the  United  States,  220;  Kline  v.  Beebe,  6  Conn.  494; 
and  not  subject  to  any  foreign  Dearborn  v.  Eastman,  4  N.  H.  441; 
power.excluding  Indians  not  taxed,  Jenkins  v.  Jenkins,  12  Iowa,  195; 
are  declared  to  be  citizens  of  the  Chapman  v.  Chapman,  13  Ind.  396; 
United  States."  Fergusen  v.  Fergusen,  17  Mo.  347; 
22  A  departure  from  this  rule  is  "Walker  v.  Ellis,  12  111.  470;  Dolph 
observed  in  many  states  in  the  v.  Hand,  156  Pa.  St.  91 ;  Logan  v. 
case  of  females,  who  are  permitted  Gardner,  136  Pa.  St.  588;  Manning 
to  attain  majority  at  the  age  of  v.  Johnson,  26  Ala.  446. 
eighteen  years;  but  within  this  age  24  Dunton  v.  Brown,  31  Mich, 
there  is  no  difference  in  the  appli-  182;  Keil  v.  Healy,  84  111.  104. 


90 


THE    PARTIES. 


dice  that  the  contract  was  honestly  entered  into  by  the  adult 
party  supposing  the  infant  to  be  of  full  age  and  competent 
to  contract,  nor  that  his  belief  was  created  by  the  fraudulent 
representations  of  the  infant,  at  the  time  the  contract  was 
made,  that  he  had  attained  his  majority.  Such  representa- 
tions would  not  create  an  estoi)pel,  and  the  infant  would, 
notwithstanding,  still  be  able  to  disaffimi  on  becoming  of 
j^rr^  25  T|-^g  ^qq^  of  au  iufaut,  however,  is  by  no  means  inoper- 
ative, and  will  suffice  to  transmit  title  with  all  its  incidents.^^ 
It  he  takes  no  steps  to  avoid  it  during  the  period  allowed  by 
law  the  title  becomes  unassailable  for  this  cause;  and  while 
mere  acquiescence  duriug  this  period  cannot  be  construed  into 
a  confinnation,-'^  there  are  many  cases  where  this,  in  connec- 
tion with  other  circumstances,  have  been  held  to  establish  a 
ratification.-^  Where  no  specific  time  is  fixed  by  statute — and 
this  is  the  case  in  most  of  the  states — it  has,  in  a  number  of 
instances,  been  held  that  silent  acquiescence,  unaccompanied 
by  other  circumstances,  for  any  period  shorter  than  that  pre- 
scribed by  the  statute  of  limitations,  would  be  insulficient 
to  bar  the  right  of  disaffirmance ;29  but,  on  the  other  hand, 
a  large  and  well-considered  class  of  cases  maintain  that,  if  the 


23  Merriam  v.  Cunningtiani,  11 
Cush.  (Mass.)  40;  Studwell  v. 
Baker,  54  N.  Y.  249;  Conrad  v. 
Lane,  26  Minn.  389;  Gilson  v. 
Spear,  38  Vt.  311;  Lackman  v. 
Wood,  25  Cal.  147;  Cook  v.  Toombs, 
36  Miss.  685;  Wieland  v.  Kobick, 
110  III.  16.  In  this  latter  case 
the  infant  stated  in  her  deed  that 
she  was  "unmarried  and  of  age," 
and  indeed  only  lacked  a  few 
months  of  majority;  but  the  de- 
fense of  infancy  was  held  good. 
Compare  Kilgore  v.  Jordan,  17 
Tex.  341.  Nor  is  there  any  differ- 
ence in  this  respect  between  a  con- 
veyance and  a  relinquishment  of 
dower.  Watson  v.  Billings,  38  Ark. 
278. 

2e  Irvine  v.  Irvine,  9  Wall.  (U. 
S.)  617;  Worcester  v.  Eaton,  13 
Mass.  371;  Logan  v.  Gardner,  136 
Pa.  St.  588. 


27  Boody  V.  McKenny,  23  Me. 
517;  Prout  v.  Wiley,  28  Mich.  164; 
Vaughn  v.  Parr,  20  Ark.  600;  Baker 
V.  Kennell,  54  Mo.  82. 

28  See  Hartman  v.  Kendall,  4  Ind. 
405;  Cresinger  v.  Lessee  of  Welch, 
15  Ohio,  193;  Fergusen  v.  Ball,  17 
Mo.  374;  Bostwick  v.  Atkins,  3  N. 
Y.  53.  As  where  the  infant,  after 
his  majority,  has  seen  the  pur- 
chaser making  valuable  improve- 
ments and  said  nothing  in  disaf- 
firmance. Wheaton  v.  East,  5 
Yerg.  (Tenn.)  41.  Or  where,  after 
becoming  of  age,  he  receives  from 
his  grantee  a  lease  of  part  of  the 
land.  Irvine  v.  Irvine,  9  Wall.  (U. 
S.)  617. 

29  Peterson  v.  Laik,  24  Mo.  541; 
Davis  V.  Dudley,  70  Mo.  236;  Hale 
V.  Gerrish,  8  N.  H.  374;  McMurry 
V.  McMurry,  66  N.  Y.  175;  Irvine 
V.  Irvine,  9  Wall.  (U.  S.)  617. 


PERSONS    UNDER    DISABILITY.  91 

infant  intends  to  avoid  or  di.saninn,  lit'  niusl  niak<'  his  election 
within  a  reasonable  time  after  the  removal  of  his  disability.'"' 
Public  policy,  no  less  than  the  spirit  of  justice  between  the 
parties,  imperatively  requires  that  one  who  thus  possesses  a 
right  of  election  shall  exercise  it  within  a  reasonable  time 
or  treat  the  right  as  waived,  and  where  such  person,  with 
full  knowledge  of  his  privilege,  omits  or  neglects  to  assert  it, 
his  omission  may  fairly  be  regarded  as  the  ecpiivalent  of  an 
act  of  aflirmance  and  as  amounting  in  fact  and  in  law  to  a 
ratification,'*!  So,  too,  it  is  a  general  rule  that  any  jiersou 
holding  an  equitable  right  must  assert  same  within  a  reason- 
able time  if  he  would  avail  himself  of  it,  and  where  one  who 
is  entitled  to  such  right  permits  the  holder  of  the  legal  title 
to  perfonn  acts  with  respect  to  the  propertj'  which  he  would 
not  have  done  had  the  right  been  promptly  asserted,  this  will 
constitute  such  laches  as  may  preclude  the  negligent  party 
from  relief.^2  The  rule  applies  with  equal  force  whether  the 
infant  be  regarded  as  a  vendor  or  vendee,  and  while  specific 
performance  will  not  usually  be  enforced  against  one  out  of 
possession,  yet,  if  after  coming  of  age  he  has  entered  or  con- 
tinues to  hold  and  enjoy  the  property  or  has  received  benefits 
therefrom,  it  will  amount  to  confirmation  on  his  part,  and 
he  will  not  be  permitted  to  avoid  the  sale  and  refuse  pa^^nent 
or  reclaim  the  consideration  already  paid.^^ 

30  Thompson  v.  Boyd,  13  Ala.  months  was  held  to  be  an  unrea- 
419;  Kline  v.  Beebe,  6  Conn.  494;  sonable  delay.  What  is  a  reason- 
Hastings  v.  Dollarhide,  Z4  Cal.  195;  able  time,  however,  will,  in  most 
Richardson  v.  Boright,  9  Vt.  368;  instances,  depend  upon  the  circum- 
Hartman  v.  Kendall,  4  Ind.  403;  stances  of  the  particular  case. 
Harris  v.  Cannon,  6  Ga.  382;  Amey  si  Dolph  v.  Hand,  156  Pa.  St.  91. 
V.  Cockey,  73  Md.  298;  Searcy  v.  32  As  where  the  holder  of  the 
Hunter,  81  Tex.  644.  In  Blanken-  legal  title  expends  money  in  the 
ship  V.  Stout,  25  111.  132,  three  improvement  of  the  property, 
years  was  held  to  be  a  reasonable  thereby  greatly  enhancing  its  val- 
time  in  which  to  disaffirm,  and  the  ue,  see  Gibson  v.  Herriott,  55  Ark. 
rule  has  since  been  followed  in  85;  Cox  v.  Montgomery,  36  111.  398. 
that  state.  In  Goodnow  v.  Em-  3.1  Robbins  v.  Eaton,  10  N.  H. 
pire  Lumber  Co.  31  Minn.  468,  an  561;  Boyd  v.  McKenny.  23  Me.  517; 
unexplained  delay  of  three  and  Delano  v.  Blake,  11  Wend.  (N.  Y.) 
one-half  years  after  the  ceasing  of  85;  Callis  v.  Day,  38  Wis.  643; 
disability  was  held  fatal  to  a  dis-  Skinner  v.  Maxwell,  66  N.  C.  45; 
affirmance.  In  Green  v.  Wilding,  Corey  v.  Burton,  32  Mich.  31 ;  Barn- 
59  Iowa,  679,  three  years  and  eight  aby   v.   Barnaby,   1   Pick.    (Mass.) 


92  THE    PARTIES. 

It  must  fui'tlier  bo  observed  that  the  priyilege  of  infancy  is 
not  in  all  respects  personal  to  the  infant;  and  contracts,  jjrants 
or  deeds  by  a  matter  in  writing,  and  which  take  effect  by 
delivery  of  his  hand,  are  voidable  not  only  by  himself  during 
his  life-time,  but  also  by  his  heirs,  or  those  who  have  his 
estate,  after  his  decease;  and  his  heirs  may  exercise  the  same 
rights  of  disaffirmance  within  the  same  time  that  the  infant 
himself  might  if  living.-'^ 

§  71.  Married  women.  It  was  among  the  earliest  formu- 
lated rules  of  the  common  law  that  the  legal  existence  of  a 
woman  upon  her  marriage  became  suspended,  and  thence- 
forward during  the  coverture  was  merged  entirely  in  that  of 
the  husband.  As  a  consequence  she  was  without  capacity  to 
take  or  hold  real  property  or  to  make  any  valid  contracts  in 
respect  to  the  same,  and  all  her  property  became  vested  in  the 
husband.  Equity  early  intervened  to  mitigate  the  austerity 
of  this  rule,  and  the  progressive  spirit  of  the  law  itself  did 
much  to  relax  it,  until  finally  legislation,  reflecting  the 
enlightenment  of  the  age,  abolished  it  altogether.  The  pre- 
vailing doctrine  now  is  that  coverture  foi-ms  no  bar — a  mar- 
ried woman  having  the  same  freedom  of  action  and  con- 
tractual liability  as  though  she  were  sole. 

The  original  rule,  in  all  its  harshness,  prevailed  for  many 
years  in  all  of  the  older  states,  although  from  an  early  day  a 
married  woman  was  permitted  to  convey  her  lands  by  joining 
with  her  husband  in  a  deed  therefor,  properly  acknowlodged 
and  certified;  but  her  acknowledgment,  which  performed  the 
same  office  as  the  ancient  fine  and  recovery,  was  the  operative 
act  to  pass  the  title,  and  not  the  delivery  of  the  deed.  Under 
these  laws  her  contracts,  whether  made  separately  or  jointly 
with  her  husband,  could  not  be  enforced  against  her,  even 
though  she  had  received  the  full  value  of  the  land.  Later 
she  was  permitted,  by  joining  with  her  husband,  to  conclude 
herself  the  same  as  a.  fc mine  sole;  and  under  these  laws  the 
acknowledgment  ceased  to  be  the  effective  means  to  work  the 
transfer  of  title,  the  certificate  standing  upon  the  same  footing 

221;   Biglow  v.  Kinney,  3  Vt.  353;  ner,    75    111.   315;    Breckenridge   v. 

and  see  the  chapters  on   "Rescis-  Ormsby,  1  J.  J.  Marsh.  (Ky.)  248; 

sion"  and  "Specific  Performance."  Austin  v.  Charleston  Seminary,   8 

34  111.  Land  and  Loan  Co.  v.  Bon-  Met.     (Mass.)     203;    but    compare 


PERSONS    UNDER    DISABILITY.  93 

with  that  rcqnirod  in  respoct  of  an  unnianicd  woman,  wliile 
the  contracts  so  made  were  capable  of  spccilic  enforcement 
in  equity.  In  still  more  recent  years  have  come  other  changes 
which  secure  to  married  women  tlie  same  rij^hts  in  rejiard  to 
their  separate  estates  as  is  jiossessed  by  their  husbands  in 
respect  to  their  own  property,  and  for  nearly  every  practical 
purpose  a  married  woman  can  no  lonfjjer  be  said  to  rest  under 
a  disability  from  that  fact  alone. 

Such,  at  least,  is  the  present  condition  of  the  law  in  a 
majorit3'  of  the  states.  But  where  the  statute  still  jjrescribes 
recjuisites,  the  rule  is  that  the  deed  of  a  nuiri-ied  woman,  to 
b(?  operative  as  a  valid  legal  contract  or  conveyance,  must 
be  executed  in  strict  conformity  with  all  such  requirements; 
and,  unless  it  does  so  conform,  equity  cannot  supply  the 
defects  or  omissions. 

At  common  law  a  wife  could  convey  her  lands  only  by 
uniting  with  her  husband  in  levying  a  fine,  which,  being  a 
solemn  proceeding  of  record,  the  judges  were  supposed  to 
watch  over  and  i)rote('t  her  rights,  and  ascertain  by  a  i)rivate 
examination  that  her  participation  was  voluntary.  The  stat- 
ute in  the  United  States  provided  a  mode  for  the  alienation 
of  the  property  of  a  married  woman  consisting  of  certain 
matters  of  execution  which  were  regarded  as  a  substitute  for 
the  common-law  fine,  but  in  order  that  her  deed  should  be 
operative  to  any  extent  the  courts  have  uniformly  held  that 
it  must  conform  fully  with  the  statute.^^ 

§  72.  Husband  and  wife.  By  the  rules  of  the  common  law 
neither  husband  nor  wife  could  contract  with  or  convey  prop- 
erty directly  from  one  to  the  other,  the  theory  being  that 
because  of  their  legal  unity  neither  could  grant  an  estate  to 
the  other  to  take  effect  in  possession  during  the  lifetime  of 
the  grantor.  The  power  of  the  husband  to  take  or  dis])ose  of 
property  was  not  affected  by  the  marriage  except  in  the  single 
instance  of  conveyance  to  the  wife,  but  with  respect  to  the 
wife  the  policy  was  always  one  of  repression.     The  statute 

Jackson  v.  Burchin,  14  Johns.  (N.  Iowa,  381;  Grove  v.  Zumbro,  14 
Y.)  127;  Beeler  v.  Bullitt,  3  A.  K.  Gratt.  (Va.)  501;  Dewey  v.  Cam- 
Marsh.    (Ky.)   280.  pau.  4  Mich.  565;  Pratt  v.  Battels, 

;'■'•-  See   Silliman   v.  Cummins,   13  28  Vt.  685. 
Ohio,  116;   O'Ferrall  v.  Simplot,  4 


9t  THE    PARTIES. 

liiiallj'  came  to  her  relief  and  permitted  her  to  convey  her 
separate  property  on  the  condition  that  the  husband  joined 
with  her  in  the  deed,  and  so  the  law  stood  for  many  years,  and 
so,  to  some  extent,  it  still  remains.  The  object  of  the  statute, 
it  would  seem,  was  to  afford  her  his  protection  against  impo- 
sition and  fraud  and  to  aid  her  by  his  counsel  and  advice.^^ 
But  this  statute,  while  it  left  her  free  to  convey  to  another 
person,  did  not  remove  the  ban  of  the  common  law  which 
prohibited  a  direct  conveyance  to  the  husband,  and,  notwith- 
standing that  conveyances  from  the  husband  to  the  wife  were 
freely  sustained  in  many  instances,  the  rule  with  respect  to 
the  wife  remained.  In  support  of  this  position  it  was  con- 
tended that  the  law  having  provided  for  the  joinder  of  the 
husband  in  this  class  of  conveyances,  with  a  view  of  giving 
the  wife  the  benefit  of  his  protecting  care  and  advice,  it  would 
be  illogical  to  permit  him  at  the  same  time  to  act  in  a  capacity, 
which,  in  law  at  least,  was  adverse  to  her  interests.  And  so 
it  was  generally  held  that  the  wife  could  not  make  a  con- 
veyance to  her  husband  or  enter  into  contractual  relations 
with  him  respecting  her  own  lands.^'^ 

But  in  many  of  the  states  the  conditions  just  considered  no 
longer  exist.  Broad  and  comprehensive  statutes  have  been 
enacted  which  assure  to  married  women  the  same  rights  of 

36  Meagher  v.  Thompson,  49  Cal.  the    right   to   receive   such   volun- 

190.  tary  conveyance  from  the  wife  has 

3T  The  general  result  of  the  rea-  not  been  conferred  upon  the  hus- 
soning  of  the  cases  may  be  sum-  band,  and  he  stands,  as  at  common 
marized  as  follows:  (1)  These  law,  incapacitated  from  taking  by 
statutes  are  for  the  benefit  of  mar-  deed  of  gift  directly  from  his  wife, 
ried  women,  and  not  for  that  of  (3)  The  "power  to  convey  and  de- 
their  husbands;  and  any  construe-  vise  real  and  personal  property  as 
tion  which  would  result  in  mak-  if  she  was  unmarried"  does  not 
ing  it  more  easy  for  the  husband  enlarge  the  powers  of  the  grantees 
to  secure  control  of  the  estate  of  under  conveyances  by  her,  and  she 
the  wife  would  tend  to  defeat  the  could  not  devise  to  a  corporation 
very  object  of  the  law.  (2)  The  or  person  incapable  of  taking  by 
inhibition  of  the  common  law,  as  will,  or  convey  to  one  incompetent 
applied  to  the  husband,  was  that  to  be  a  grantee.  (4)  To  render  a 
he  could  neither  convey  to  his  wife,  conveyance  from  the  wife  to  her 
directly,  nor  be  a  grantee  from  husband  valid,  the  husband's  com- 
ber; and,  while  the  right  of  the  mon-law  disability,  as  well  as  that 
wife  to  take  by  gift  removes  the  of  the  wife,  must  be  removed, 
impediment  to  a  voluntary  convey-  White  v.  Wager,  25  N.  Y.  328; 
ance  from  the  husband  to  her,  yet  Brooks  v.  Kearns,  86  111.  547;  Scar- 


PERSONS    UNDER    DISABILITY.  95 

alienation  of  their  separate  property  as  are  enjoyed  by  unmar- 
ried women,  and  where  such  hiws  prevail  it  would  seem  that 
a  married  woman  may  now  convey  in  the  same  manner  and 
with  the  same  effect  as  if  sole,  subject,  of  course,  to  whatever 
provision  the  laws  of  the  locality  may  imj)ose  with  resjiect  to 
homestead  and  dower.  In  her  dealings  with  third  persons  but 
little  question  can  arise  under  these  statutes,  and  though 
some  doubt  may  still  remain  willi  respect  to  transactions 
directly  with  the  husband"'^  the  trend  of  opinion  indicates  that 
her  deeds  to  him  are  to  be  upheld  and  accorded  the  same  effect 
as  those  made  to  others.^"  And  even  in  those  states  where 
deeds  of  this  character  are  denied  eifect  at  law  they  may  still 
be  upheld  in  equity,^*^  particularly  when  shown  to  have  been 
based  upon  a  sutiicieut  consideration,^^  and  executed  without 
compulsion. '■- 

borough    V.    Watkins,    9    B.    Mon.  Me.  371;    Burdeno  v.  Amperse,  14 

(Ky.)    545;   Kinnaman  v.  Pyle,  44  Mich.  97;  Williams  v.  Harris,  4  S. 

Ind.  275;  Winans  v.  Peebles,  32  N.  Dak.    22;    Grain    v.    Shipman,    45 

Y.    423;    Sims   v.   Rickets,   35    Ind.  Conn.  572. 

181.  ••"Turner    v.    Shaw,    96    Mo.    22; 

38  See  Winans  v.  Peebles,  32  N.  Y.  Darlington's  Appeal,  86  Pa.  St.  512. 

423;  Luntz  v.  Greve,  102  Ind.  173;  ^i  Winans   v.    Peebles,    32    N.    Y. 

Gebb  V.  Rose,  40  Md.  387.  423,  and  see  Wormley  v.  Wormley, 

30  See    Osborne    v.    Cooper,    113  98  111.  544;  Bush  v.  Henry,  85  Ala. 

Ala.    405;     Simms    v.    Hervey,    19  605. 

Iowa,  287;  Robertson  v.  Robertson,  42  Darlington's  Appeal,  86  Pa.  St. 

25  Iowa,  350;  Allen  v.  Hooper,  50  512. 


Article  III.    Persons  iNcoMrETENT. 

§  73.    Lunatics.  §  75.     Drunkards. 

74.     Imbeciles.  76.     Convicts. 

§  73.  Lunatics.  Tersons  of  unsound  mind,  when  such  un- 
soundness amounts  to  an  incapacity  to  understand  and  act 
in  the  ordinary  aH'airs  of  life,  have  always  been  held  incapable 
of  making  a  valid  contract;  for  it  is  essential  that  there  should 
be  the  concurring  assent  of  two  minds,  and  they  who  have  no 
mind  are  unable  to  give  true  consent.^  Yet,  while  this  is  the 
recognized  doctrine,  it  by  no  means  furnishes  a  conclusive  rule 
for  the  decision  of  all  questions  growing  out  of  the  contracts 
of  demented  persons;  nor  indeed  can  any  definite  rule,  that 
can  be  deemed  authoritative,  be  formulated  from  the  reported 
cases.  It  would  seem,  however,  that  while  the  plea  of  lunacy 
is  usually  an  effectual  bar  to  the  enforcement  of  an  executory 
contract,-  yet  where  a  purchase  has  been  made  from  an  insane 
person,  and  a  deed  of  conveyance  obtained  in  perfect  good 
faith,  before  an  inquisition  and  finding  of  lunacy  and  with 
no  knowledge  of  such  lunacy  on  the  part  of  the  purchaser, 
and  if  the  transaction  has  been  in  all  other  respects  fair  and 
reasonable,  with  no  advantage  taken  by  the  purchaser,  and 
if  the  conveyance  was  for  a  sufficient  consideration,  which 
was  received  by  the  lunatic,  then,  if  the  parties  cannot  be 
put  in  statu  quo,  it  will  not  be  set  aside."  This  results,  it  is 
said,  not  because  the  contract  was  valid  and  binding,  but 
rather  for  the  reason  that  an  innocent  party,  without  fault 

1  Powell  v.  Powell,  18  Kan.  ,371;  other  party  was  non  compos  mentis 
Van  Deusen  v.  Sweet,  51  N.  Y.  378;  at  the  time  the  contract  was  made. 
Dexter  v.  Hall,  82  U.  S.  9;  and  see  3  Behrens  v.  McKenzie,  23  Iowa, 
Grant  v.  Thompson,  4  Conn.  203;  333;  Gribben  v.  Maxwell,  7  Pac. 
Lang  v.  Whidden,  2  N.  H.  435.  Rep.    584;    Allen   v.    Berryhill,    27 

2  It  was  held  in  Allen  v.  Berry-  Iowa,  534;  Rhodes  v.  Fuller,  139 
hill,  27  Iowa,  534,  that  where  a  Mo.  179;  Schaps  v.  Lehner,  54 
contract  made  by  an  insane  person  Minn.  208;  Odom  v.  Riddick,  104 
has  been  adopted,  and  is  sought  to  N.  C.  515;  Eldredge  v.  Palmer,  185 
be  enforced  by  the  representatives  111.  618;  Bank  v.  Moore,  78  Pa.  St. 
of  such  person,  it  is  no  defense  to  407,  where  a  lunatic  was  held  liable 
the  same  party  to  show  that  the  upon  a  note  discounted  by  him  at 

96 


PERSONS    INCOMPETENT.  97 

or  Legligence,  would  hv  prejudiced  by  setting  it  aside.  Both 
parties  are  faultless,  and  therefore  stand  ecpial  before  the 
law;  and  in  the  forum  of  conscience  the  law  will  not  lend  its 
active  interposition  to  effectuate  a  wrong  or  prejudice  to 
either,  but  will  suffer  the  misfortune  to  remain  where  nature 
has  cast  it.' 

It  must,  of  course,  be  understood  that  the  circumstances 
attending  the  case  have  much  to  do  with  the  application  of  the 
rule  last  stated  whenever  it  is  invoked  as  a  rule.  Insanity  is  a 
mj'sterious  disease,  sometimes  affecting  the  mind  only  in  its 
relation  to  or  connection  with  a  particular  subject,  leaving  it 
apparentl}-  sound  and  rational  as  to  all  others;  and  many  insane 
peisous  drive  as  thrifty  a  bargain  as  the  shrewdest  business 
man,  without  betraying  in  manner  or  conversation  the  faintest 
trace  of  mental  derangement.  It  would  be  unjust,  therefore, 
that  such  persons  should  be  allowed  to  retain  the  property 
of  innocent  parties,  or  to  retain  their  own  property  and  its 
price ;5    and  in  this  light  the  rule,  as  stated,  is  applied. 

The  deed  of  a  lunatic  is  not  void,  but,  like  that  of  other 
persons  incompetent  or  disabled,  voidable  only,  and  is 
effectual  to  pass  title  with  all  its  incidents  if  unassailed.*^  The 
authorities  are  contradictory  upon  this  point,  however,  and 
in  a  number  of  cases  it  has  been  held  that  the  deed  of  an 
iusaue  grantor,  executed  before  an  inquisition  of  luuacy,  is 
not  merely  voidable  but  void,'^  though  it  would  seem,  where 
this  view  is  taken,  that  to  establish  invalidity  it  must  appear 
that  the  grantor  at  the  time  of  execution  was  absolutely  with- 
out capacity  to  understand  or  comprehend  the  nature  of  the 

the  bank;   Scanlan  v.  Cobb,  85  111.  Mass.  359;    Ingraham  v.  Baldwin, 

296;  Freed  v.  Brown,  55  Ind.  310;  9  N.  Y.  45;   Crouse  v.  Holman,  19 

Young  V.   Stevens,   48   N.   H.   133;  Ind.  30;  Chew  v.  Bank,  14  Md.  299; 

Eaton  V.  Eaton,  37  N.  J.  L.  108;  Hovey  v.  Hobson,  53  Me.  451;  Els- 

and   see   2   Kent   Com.    (11th  ed.)  ton  v.  Jasper,  45  Tex.  409;    Mohr 

583.     The  English  cases  also  sus-  v.    Tulip,    40    Wis.    66;    Eaton    v. 

tain  this  view.  Eaton,  37  N.  J.  L.  108;   Nichol  v. 

4  Cole,  J.,  in  Allen  v.  Berryhill,  Thomas,  53  Ind.  42;  Castro  v.  Geil, 
27   Iowa,   534;    and   see  Wilder  v.  110  Cal.  292. 

Weakley,    34    Ind.    181;    Henry   v.  7  Rogers    v.    Walker.    6    Pa.    St. 

Fine,  23  Ark.  417.  371;  Van  Deusen  v.  Sweet,  51  N.  Y. 

5  Bank  v.  Moore,  78  Pa.  St.  407;  378;  Rogers  v.  Blackwell.  49  Mich. 
Young  V.  Stevens.  48  N.  H.  133.  192;  but  see  Moran  v.  Moran,  106 

6  Wait  v.  Maxwell,  5  Pick.  Mich.  8;  Eldredge  v.  Palmer.  185 
(Mass.)  217;  Badger  v,  Phinney,  15  111.  618. 

7 


98  THE    PARTIES. 

transact iou.^  The  volume  of  authority  sustains  the  first 
proposition  as  stated,  and,  generally,  where  the  deeds  of 
demented  persons  are  set  aside  the  consideration  paid  therefor 
must  be  restored.^ 

After  a  person  has  by  inquest  been  found  to  be  of  unsound 
mind,  he  should,  so  long  as  the  unsoundness  continues  to 
exist,  be  regarded  for  most  if  not  all  purposes  of  business  as 
civilly  dead,'^  and  a  deed  thereafter  executed  by  him  would 
be  absolutely  void.^i 

The  right  of  disaffinnance  being  raised  for  the  personal  pro- 
tection of  the  insane  person  it  follows  that  those  who  deal 
with  him  have  no  corresponding  rights.  The  rule  is  much 
the  same  as  in  the  case  of  infants  and  where  one  has  con- 
tracted with  an  insane  person,  although  unaware  of  his  in- 
firmity at  the  time,  he  will  be  held  to  the  performance  of  the 
contractual  undertaking  unless  he  has  been  misled  by  some 
fraudulent  artifice  or  misrepresentation.^^ 

§  74.  Imbeciles.  Mere  weakness  of  mind,  when  unaccom- 
panied by  an}'  circumstances  showing  imposition  or  undue 
advantage,^^  forms  no  objection  to  the  validity  of  a  contract,i^ 
for  the  law  does  not  graduate  intellectual  differences  on  a 
nicely  adjusted  scale;  nor  does  it  seem  that  partial  insanity 
or  monomania,^^  unless  it  exists  with  reference  to  the  con- 
tract,!^  will  create  incapacity  unless  coupled  with  other  cir- 
cumstances. That  the  mental  powers  have  been  somewhat 
impaired  by  age  is  not  sufficient  to  invalidate  a  deed,!^  unless 
it  can  be  shown  that  the  purchaser  took  unfair  advantage  of 
the  vendor's  mental  incapacity;  and  if  he  be  still  capable  of 
transacting   his    ordinary    business — if    he   understands   the 

sAldrich  v.  Bailey,  132  N.  Y.  85.  Young  v.   Stevens,   48  N.  H.  133; 

a  Eldredge  v.  Palmer,  185  111.  618.  Cain  v.  Warford,  33  Md.  23. 

10  McNees  v.  Thompson,  5  Bush  i*  Somers  v.  Pumphrey,  24  Ind. 
(Ky.),  686.  231;    Baldwin    v.    Dunton,    40    111. 

11  Rhoades  v.  Fuller,  139  Mo.  179;  188;  Willemin  v.  Dunn,  93  111.  511; 
Griswold  v.   Butler,  3   Conn.   227;  Mann  v.  Betterly,  21  Vt.  326. 
Elston  V.  Jasper,  45  Tex.  409.  i5  Burgess  v.   Pollock,   53   Iowa, 

i2Atwell  V.   Jenkins,    163   Mass.    273. 
362;    Allen  v.   Berryhill,   27   Iowa,        le  Emery   v.    Hoyt,    46    111.    258; 
534;   Harmon  v.  Harmon,  51  Fed.    Staples  v.  Wellington,  58  Me.  453. 
Rep.  113.  i7Lindsey  v.  Lindsey,  50  111.  79; 

13  Mann  v.  Betterly,  21  Vt.  326;     Beverly  v.  Walden,  20  Gratt.  (Va.) 

147. 


PERSONS    INCOMPETENT.  99 

nature  of  the  business  in  w  liicli  he  is  enj^aged,  and  the  effect 
of  what  he  is  doing,  and  can  exercise  his  will  with  reference 
thereto — his  acts  will  be  valid  and  binding.^'* 

Transactions  with  persons  of  feeble  mind  are  always  sub- 
ject to  close  scrutiny,  however,  and,  unlike  those  between 
parties  of  unimpaired  mental  faculties,  will  be  set  aside  on 
slight  grounds  after  the  disability  has  been  shown  to  exist. 
Where  one  of  the  parties  to  a  contract  at  the  time  of  its  exe- 
cution was  laboring  under  mental  weakness,  a  court  of  equity 
will  investigate  the  consideration  and  detennine  its  suffi- 
ciency, as  well  as  pass  upon  the  party's  mental  state  and  con- 
dition; and  if  inadequacy  of  consideration  and  mental  imbe- 
cility concur,  although  the  weakness  of  mind  does  not  amount 
to  idiocy  or  legal  incapacity,  the  contract  will  be  annulled  at 
the  instance  of  such  party.  In  this  class  of  cases,  it  would 
seem,  it  is  not  necessary  to  show  that  the  complaining  party 
was  actually  misled  by  fraud  or  dominated  by  undue  influ- 
ence.i^ 

Persons  born  deaf  and  dumb  are,  by  the  common  law, 
prima  facie  non  compos  mentis,  and  without  sufficient  under- 
standing to  know  and  comprehend  their  rights,  duties  and 
liabilities.  The  improved  methods  of  educating  such  persons 
adopted  at  the  present  day  develop  in  them  a  higher  degree 
of  intelligence,  however,  than  it  was  formerly  supposed  they 
possessed,  and  to  some  extent  has  modified  the  ancient  rule. 
Yet  as  the  want  of  hearing  and  speech  must  necessarily  pre- 
vent a  full  development  of  their  intellectual  powers,  and  place 
them  at  a  great  disadvantage  in  their  dealings  with  others, 
the  law  throws  around  them  for  their  protection  the  presump- 
tion of  incapacity  to  manage  their  own  affairs  until  the  con- 
trary is  shown.20 

IS  English  V.  Porter,  109  111.  285;  posed  upon,  the  statement  of  a  con- 

Cadwallader  v.  West,  48  Mo.  483;  sideration   when   there   was   none, 

Lozear  v.  Shields,  23  N.  J.  Eq.  509.  or  improvidence  of  the  transaction, 

10  Wray   v.    Wray,   32    Ind.    126.  are  circumstances  which  furnish  a 

In  transactions  connected  with  the  probable,  though  not  always  a  cer- 

transfer   of   property,    the   non-in-  tain,    test    of    undue    influence    or 

tervention  of  a  disinterested  third  fraud.      Cadwallader   v.    West,    48 

party  or  independent  professional  Mo.  483. 

adviser,  especially  when   the  con-  20  Oliver  v.   Berry,   53  Me.   206; 

tracting  party  is  from  age  or  weak-  Brower  v.  Fisher,  4  Johns.  Ch.  (N. 

ness  of  disposition  likely  to  be  im-  Y.)   441. 


100  THE    PARTIES. 

§  75.  Drunkards.  It  is  a  well-established  principle  of  the 
common  law  that  intoxication  does  not  of  itself  render  a  con- 
tract void  or  relieve  the  contractinj^  parties  from  its  conse- 
(piences,  notwithstanding  it  may  be  such  as  to  lead  them  into 
imprudent  and  disadvantageous  engagements.^^  Were  it 
otherwise,  drunkenness,  it  is  said,  would  be  the  cloak  of  fraud. 
P)Ut,  on  the  other  hand,  where  it  is  such  as  not  to  leave  to  men 
the  power  of  perceiving  and  assenting,  they  cannot  be  bound, 
because  the  very  essence  of  every  contract  is  the  assent  of  the 
contractor  to  what  he  may  be  presumed  to  understand;  and 
hence,  where  the  power  of  assent  is  wanting,  where  reason, 
memory  and  judgment  have  been  drowned,  leaving  such  an 
impairment  of  the  mental  faculties  as  amounts  to  positive 
incapacity  to  act  or  comprehend,  the  transaction  may  be 
avoided  for  that  reason.22 

To  avoid  responsibility,  however,  on  the  ground  of  intoxi- 
cation, the  proof  of  mental  incapacity  must  be  clear  and  con- 
vincing;-^ for  a  drunkard  is  not  incompetent,  like  an  idiot  or 
one  generally  insane,^*  and  the  proof  must  show  that  at  the 
time  of  the  act  in  question  his  understanding  was  clouded  or 
his  reason  dethroned  by  actual  intoxication  ;25  while  some 
authorities  hold  that,  notwithstanding  he  may  have  been  so 
drunk  at  the  time  as  to  be  incapable  of  judging  correctly  or 
acting  prudently,  he  will  still  be  held  to  the  contract,  unless 
it  can  be  shown  that  the  intoxication  was  procured  with  the 
consent  or  by  the  contrivance  of  the  other  party,  or  that  fraud 
or  duress  was  employed.-^  The  volume  of  authority,  however, 
does  not  seem  to  sanction  this  view;  and  it  may  now  be  con- 
sidered a  settled  principle,  according  to  the  dictates  of  good 
sense  and  common  justice,  that  a  contract  made  by  a  person 

21  Bates  v.  Ball,  72  111.  108;  Joest  Freeman  v.  Staats,  8  N.  J.  Eg. 
V.   Williams,   42    Ind.    565;    Broad-    814. 

water  v.  Darne,  10  Mo.  277;  Johns  23  Bates  v.  Ball,  72  111.  108. 

V.  Fritchey,  39  Md.  258;   Caulkins  24  Van   Wyck  v.  Brasher,   81   N. 

V.  Fry,  35  Conn.  170;  Peck  v.  Gary,  Y.  260. 

27  N.  Y.  9.  25  Gardner  v.  Gardner,  22  Wend. 

22  French  v.  French,  8  Ohio,  214;  (N.  Y.)  526  Peck  v.  Gary,  27  N. 
Van  Wyck  v.  Brasher,  81  N.  Y.  Y.  9;  Johns  v.  Fritchey,  39  Md. 
260;    Wilcox  v.  Jackson,  51   Iowa,  258. 

208;    Dunn  v.  Amos,  14  Wis.  106;        26  Bates  v.  Ball,  72  111.  108;  Rod- 
Johns   V.    Fritchey,    39    Md.    258;    man  v.  Zilley,  1  N.  J.  Eq.  320. 
Johnson    v.    Phifer,    6    Neb.    401; 


PERSONS    INCOMPETENT.  101 

SO  destitute  of  reason  as  uot  to  know  tlu*  consequences  of  his 
contract,  even  though  his  incompetency  be  produced  by  intoxi- 
cation, is  voidable,  and  may  be  avoided  by  himself;  and  this, 
too,  although  the  intoxication  was  voluntary,  and  not  pro- 
cured by  the  circumvention  of  the  other  party.^"^ 

Ordinarily,  to  defend  against  a  contract  on  the  ground  of 
intoxication,  it  must  have  been  rescinded  by  restoring,  or  by 
an  offer  to  restore,  whatever  was  received  therefor  as  a  con- 
sideration ;28  and  if  the  drunkard,  during  his  sober  intervals 
and  with  knowledge  of  what  he  has  done,  keeps  the  consider- 
ation received,-"*  or  by  other  unequivocal  act  or  declaration 
indicates  an  intention  to  ratify  what  he  has  done,  the  contract 
will  be  regarded  as  allirmed.-*^ 

A  protection  against  waste  and  improvidence  has  been  cre- 
ated in  most  of  the  states  by  a  Sfjecial  statute  providing  for  a 
conservator  or  committee  to  manage  and  control  the  drunk- 
ard's estate;  and  when  a  man  has  been  found,  by  inquisition 
duly  taken  in  pursuance  of  the  statute,  to  be  incapable  of 
conducting  his  own  allairs  in  consequence  of  habitual  drunk- 
enness, his  property — real  as  well  as  personal — is  taken  out 
of  his  hands  and  put  into  the  custody  and  control  of  such  com- 
mittee. The  trust  thus  created  continues  without  interrup- 
tion until  the  death  of  the  drunkard  or  the  superseding  of  the 
commission,  and  all  business  relating  to  the  drunkard's  estate 
must  be  transacted  with  the  conservator  or  committee  until 
the  inquisition  has  been  set  aside.^^  The  fact  that  the  drunk- 
ard has  sober  intervals  in  no  way  alters  the  case,  and  during 
such  intervals  he  has  no  more  authority  to  deal  with  or  dis- 
pose of  his  property  than  while  he  is  in  a  state  of  intoxication; 
nor  will  the  further  fact  that  the  other  contracting  party  acted 

27  Broadwater  v.  Darne,  10  Mo.  same  as  in  cases  of  infancy;  and 

277;    Miller    v.    Finley,    26    Mich,  any  distinct,  unequivocal  act,  after 

254;   Mansfield  v.  Watson,  2  Iowa,  becoming  sufficiently  sober  to  com- 

111;    Belcher  v.  Belcher,  10  Yerg.  prehend  the  nature  of  the  trans- 

(Tenn.)    121;    and  see   Scanlan  v.  action,  manifesting  an  intention  to 

Cobb,  85  111.  296;  Johns  v.  Fritchey,  be  bound  by  the  contract  and  in- 

39  Md.  258.  consistent   with    its    disaffirmance, 

sf^  Joest  v.  Williams,  42  Ind.  565;  will  amount  to  a  ratification.  Mans- 

Cummings  v.   Henry,  10  Ind.  109.  field  v.  Watson,  2  Iowa,  111. 

29  Joest  V.  Williams,  42  Ind.  565.  ■''i  Wadsworth  v.  Sharpsteen,  8  N. 

30  The  rule  with  respect  to  in-  Y.  388;  Redden  v.  Baker,  86  Ind. 
toxicated  persons  is  practically  the  195. 


102  THE    PARTIES. 

ill  good  faith  and  with  no  actual  notice  of  the  inquisition  con- 
fer upon  him  any  additional  rights  or  furnish  ground  for 
equitable  relief.  From  the  very  nature  and  object  of  the  pro- 
ceeding the  inquisition  must  be  regarded  as  conclusive  evi- 
dence of  the  incapacity  of  the  drunkard  to  dispose  of  his  prop- 
erty or  contract  obligations  in  regard  thereto;  and  of  this 
proceeding  those  dealing  with  him  must  take  notice.  This 
rule  may  sometimes  be  a  hard  one,  but  it  can  never  be  said 
to  be  unjust;  nor  does  it  violate  the  general  rule  that  a  decree 
or  other  judicial  proceeding  binds  those  only  who  are  parties 
to  it,  as  these  proceedings  are  matters  of  public  interest  and 
concern,  to  which  no  one  can  strictly  be  said  to  be  a  stranger.32 

§  76.  Convicts.  At  common  law  a  person  convicted  of 
treason  or  felony  was  placed  in  a  state  of  attainder,  the  con- 
sequences of  which  were  forfeiture  of  estate,  corruption  of 
blood,  and  a  total  deprivation  of  civil  rights;  in  other  words, 
he  became  dead  in  law,  and  this  condition  was  termed  "civil 
death."  The  exact  status  of  a  person  so  conditioned  does  not 
seem  to  be  altogether  clear  so  far  as  respected  his  contractual 
rights,  but  it  would  seem  that  in  any  event  he  was  unable 
to  invoke  the  aid  of  a  court  to  enforce  his  contracts  or  to 
obtain  any  relief  against  them. 

The  term  "civil  death"  has  been  retained  in  the  statutes  and 
codes  of  a  number  of  states,  but  no  very  definite  meaning 
attached,  and,  for  this  reason,  it  has  been  made  the  subject 
of  considerable  controversy.  But  notwithstanding  the  reten- 
tion of  the  term  it  would  seem,  under  the  interpretation  of 
the  courts,  to  imply  nothing  more  than  a  deprivation  of 
political  rights,  leaving  the  civil  rights  of  the  convict  in  large 
measure  unimpaired.  Particularly  is  this  true  with  respect 
to  his  property,  and  it  may  be  said  that  the  forfeitures  and 
disabilities  of  the  common  law  in  regard  to  same  are  unknown 
in  the  United  States.^^  A  convicted  felon  may  dispose  of  his 
property  by  wull  or  deed,  and,  it  would  seem,  may  enter  into 
contractual  relations  and  make  effective  agreements  concern- 
ing it.^^ 

32  Wadsworth   v.    Sharpsteen,    8  39 ;  Coffee  v.  Haynes,  124  Cal.  561 
N.  Y.  388.  Avery  v.  Everett,   110   N.  Y.   317 

33  They    have    practically    been  Willingham  v.  King,  23  Fla.  478 
abolished  by  statute  in  England.  Frazer  v.  Fulcher,  17  Ohio,  260. 

34  See  Davis  v.  Laning,  85  Tex. 


Article  IV.    Fiduciaries. 

§  77.  General  principles.  §  83.  Guardians. 

78.  Trustees.  84.  Trustees  as  purchasers — The 

79.  Mortgagees.  rule  stated. 

80.  Executors    and    administra-  85.  Continued — Exceptions        to 

tors.  and    qualifications    of    the 

81.  Continued — Executors.  rule. 

82.  Continued —  Administrators. 

§  77.  General  principles.  A  very  large  proportion  of  the 
sales  of  real  proix-rty  in  the  United  States  are  made  through 
the  media  of  fiduciaries  and  trustees.  They  include  not  only 
trustees  proper,  but  all  who  act  under  a  power,  as  mortga- 
gees, executors,  guardians,  etc.;  and  the  same  general  prin- 
ciples are  equally  applicable  to  all  of  the  ditferent  classes 
and  relations.  Courts  of  equity  will  scrupulously  examine 
the  conduct  of  persons  acting  in  a  fiduciary  or  trust  cai)acity, 
and  protect  the  trust  property  from  waste,  whether  it  arises 
from  the  actual  or  constructive  fraud  of  the  trustee  acting 
with  the  party  taking  the  undue  advantage,  or  from  the  fraud 
of  the  latter  alone.^  The  presumption  is,  however,  that  partii'S 
charged  with  a  trust  perform  their  duty  until  the  contrary 
appears;  and,  when  an  act  is  susce])tible  of  two  opposite 
constructions,  one  consistent  with  innocence  and  fidelity  to 
duty  and  the  other  the  reverse,  the  law  presumes  in  favor  of 
innocence  and  fidelity.^ 

§  78.  Trustees.  By  the  rules  of  the  common  law,  as  well  as  by 
statutory  enactments  in  many  states,  a  trustee  to  whom  land 
has  been  conveyed  is  regarded  as  possessing  the  full  legal  title, 
the  legal  estate  in  his  hands  being  attended  by  the  same  inci- 
dents and  having  the  same  jjroperties  that  it  would  have  were 
he  the  usufructuary  owner.^  In  equit}'  he  was  fonnerly  treated 
as  the  legal  owner,  and  for  many  ])ui'])oses  is  still  so  consid- 
ered, although  obliged  to  use  the  land  for  the  declared  objects 
and  avowed  purposes  of  the  trust.  At  the  present  time,  and 
in  the  United  States,  the  generally-accepted  doctrine  is  that 

1  Moore  v.  School  Trustees,  19  3  Devin  v.  Hendershott,  32  Iowa, 
111.  83.  192;  Beach  v.  Beach,  14  Vt.  28. 

2Munn  v.  Burges,  70  III.  604. 

103 


104  THE    PARTIES. 

a  trustee  takes  an  estate  coiiimeusuiate  iu  extent  and  duration 
with  the  object  and  extent  of  the  trust.  Its  creation  gives  him 
not  only  a  power  but  an  estate;  and  if  the  trusts  require  an 
estate  in  fee,  such  will  devolve  on  the  trustee  irrespective  of 
any  words  of  purchase  or  limitation.* 

A  conveyance  by  the  trustee  has,  at  common  law,  the  effect 
of  a  complete  transfer,  which  is  as  effectual  ordinarily  as 
though  he  also  possessed  the  beneficial  estate;^  and  even 
though  the  conveyance  may  have  been  in  violation  of  the 
trust,  his  vendee  will  nevertheless  hold  the  legal  title,  the 
question  as  to  his  right  to  convey  being  of  equitable  cogni- 
zance onh%  and  hence  not  to  be  inquired  into  by  a  court  of 
law.6  The  revised  statutes  of  some  of  the  states  provide  that, 
where  the  trust  shall  be  expressed  in  the  instrument  creating 
the  estate,  every  sale,  conveyance,  or  other  act  of  the  trustee 
in  contravention  of  the  trust  shall  be  absolutely  void,  the 
object  being  to  protect  beneficiaries  from  the  unauthorized 
acts  of  their  trustees  by  charging  persons  dealing  with  the 
latter  with  know-ledge  of  the  trust.  Under  these  statutes  the 
courts  have  held  that  any  sale  or  conveyance  in  contravention 
of  the  trust  is  ineffectual  to  pass  the  title,  and  that  the 
legal  estate,  notwithstanding  the  conveyance,  remains  in  the 
trustee."^  Independent  of  any  statute,  however,  there  is  no 
doubt  but  that  persons  dealing  with  a  trustee  on  the  faith  of 
the  trust  estate  are  bound  at  their  peril  to  take  notice  of  the 
scope  of  his  powers;^  and  where  a  trust  deed,  or  other  instru- 
ment creating  the  trust,  minutely  and  particularly  describes 
the  circumstances  under  which  and  the  manner  in  w'hich  the 
trustee  shall  have  authority  to  act,  he  will  have  no  power  or 

4  Welch  V.  Allen,  21  Wend.  (N.  (N.  C.)  155;  Dawson  v.  Hayden,  67 
Y.)  147;  West  v.  Fitz,  109  111.  425;     111.  52. 

Doe  V.  Ladd,  77  Ala.  223;  Leonard  7  Anderson   v.   Wood,    44    N.    Y. 

V.    Diamond,    31    Md.    536;    Stock-  249;    Russell  v.   Russell,  36   N.  Y. 

bridge  V.  Stockbridge,  99  Mass.  244.  581;    Douglas  v.  Cruger,  80  N.  Y. 

5  Bank  v.  Benning,  4  Cranch  (U.  15.  The  statute  does  not  seem  to 
S.),  81;  Thatcher  v.  St.  Andrew's  have  been  very  generally  enacted, 
Church,  37  Mich.  264;  Dawson  v.  and  appears  to  be  confined  to  New 
Hayden,  67  111.  52;  R.  R.  Co.  v.  York,  California  and  possibly  a  few 
Green,  68  Mo.  169;  Packard  v.  Mar-  other  states. 

shall,  138  Mass.  301.  » Owen    v.    Reed,    27    Ark.    122; 

c  Canoy  v.  Troutman,  7  Ired.  L.    Vernon  v.  Board  of  Police,  47  Miss. 

181. 


FIDUCIARIES.  105 

authority  to  dispose  of  the  liiisl  properly  under  auy  other 
circumstances  or  in  any  other  manner."  If  the  power  to  con- 
vey can  bo  exercised  only  on  the  hap|»eniii<;  of  an  event  which 
is  a  condition  precedent,  the  i)iii(liaser  niusl  ascertain  at  ills 
peril  whether  the  condition  has  been  fulfilled.'" 

A<i;ain,  if  one  who  holds  a  lej^al  11  (le  in  trust  for,  or  who  is 
<'(piilably  bound  to  convey  to,  another,  transfei-s  the  le^al  title 
to  a  third  person  witii  notice  of  the  trust,  sudi  purchaser  will 
himself  become  a  trustee,  and  as  much  bound  to  convey  to  the 
real  owner  as  if  he  had  acquired  the  title  with  an  express 
agreement  to  perfonn  the  trust.''  He  can  only  hold  it  subject 
to  the  liabilit}'  of  his  vendor  to  resjtond  to  the  existinj^  trust, 
and  (^innot  be  heard  to  defeat  it,  notwithstanding  he  may 
have  purchased  for  a  full  consideration.' 2 

Lands  lield  in  trust  by  several  persons  are  incapable  of 
partition  and  can  only  be  convej'ed  by  the  joint  act  of  all;'^ 
and,  if  any  one  or  more  of  them  assume  to  act  without  the 
concurrence  of  the  other,  the  conveyance  will  not  pass  the 
legal  title  to  the  property.'"* 

§  79.  Mortgagees.  Sales  and  conveyances  by  mortgagees, 
acting  under  and  in  pursuance  of  a  power,  differ  in  no  import- 
ant particular  from  conveyances  by  trustees  acting  in  a  like 
capacity,  the  mortgagee  being,  for  the  puii)oses  of  the  con- 
veyance, an  executor  of  an  express  trust.  He  is  held  to  the 
same  strict  rules  that  regulate  the  conduct  of  other  trustees, 
and  cannot  exceed  the  express  powers  under  which  he  acts. 
A  mortgagee  may  sell  the  equity  of  redemption  of  the  mort- 
gagor and  such  interest  as  is  conveyed  to  him  by  the  mort- 
gage under  which  he  sells,  but  he  cannot  sell  the  equity  of 
redemption  by  itself;    nor  can  he  sell  an  undivided  portion 

•••  Huntt   V.    Townshend,    31    Md.  Fla.  171;  Smith  v.  Walter.  49  Mo. 

336;  Mills  v.  -Taylor,  30  Tex.  7.  250. 

10  Griswold  v.  Perry,  7  Lans.  (N.  12  Webster  v.  French,  11  III.  254; 
Y.)   98.  Bethel  v.  Sharp,  25  111.  173. 

11  Jackson  v.  Matsdorf,  11  Johns.  i^  Sinclair  v.  Jackson,  8  Cow. 
(N.  Y.)  91;  Carpenter  v.  McBride,  (N.  Y.)  543;  Goldep  v.  Dressier 
3  Fla.  292;  Ryan  V.  Doyle,  31  Iowa,  105  111.  419;  Heard  v.  March,  12 
53;  Kent  v.  Plumb,  57  Ga.  207;  Cush.  (Mass.)  580;  Ham  v.  Ham. 
Ham  V.  Ham,  58  N.  H.  70;  Sadler's  58   N.   H.   70. 

Appeal,  87  Pa.  St.  154;  Gray  v.  i-«  Lamed  v.  Welton.  40  Cal.  349; 
Ulrich,  8  Kan.  112;  Isom  v.  Bank,  Morville  v.  Fowle,  144  Mass.  109. 
52   Miss.   902;    Gale   v.   Hardy,   20 


lOG  THE    PARTIES. 

of  his  iutcrc'st  iu  the  hmd  included  in  the  mortgage.  A  proper 
execution  of  the  power  of  sale  requires  him  to  sell  all  he  is 
entitled  to  under  it,^''  and  for  the  same  reason  he  has  no 
right  to  sell  a  greater  interest  than  the  mortgage  gives  to  him 
or  authorizes  him  to  sell.  A  violation  of  these  rules  will 
render  the  sale  invalid.^^  The  original  i)urchaser  at  a  sale  by 
a  mortgagee,  under  a  x>ower  of  sale  contained  in  the  mortgage, 
is  chargeable  with  notice  of  defects  and  irregularities  attend- 
ing the  sale,  and  cannot  evade  their  effect,  but  it  would  seem 
that,  as  to  remote  purchasers,  the  sale  is  only  voidable  on 
proof  of  actual  knowledge  of  such  defects.^'^  It  has  been  held, 
however,  that  a  properly  executed  deed  reciting  strict  con- 
formity, the  purchaser  having  no  actual  knowledge  or  notice 
of  any  irregularity,  and  taking  such  deed  upon  the  strength 
of  the  assurances  therein  contained,  will  protect  the  title  of 
such  purchaser.18 

§  80.  Executors  and  administrators.  Executors  and  admin- 
istrators stand  in  the  position  of  trustees  of  those  interested 
in  the  estates  upon  which  they  administer.  An  executor  may 
sell  and  convey  lands  held  in  special  trust  without  the  inter- 
vention of  a  court,  but  not  such  lands  as  are  sold  in  due  course 
of  administration  to  pay  decedent's  debts,  while  an  admin- 
istrator can  do  no  act  affecting  lands  without  special  orders 
of  a  court.  In  case  of  sales  by  either  officer,  no  title  passes 
until  the  execution  and  delivery  of  a  deed;^^  and,  without 
such  title  as  the  deed  conveys,  the  purchaser  cannot  maintain 
or  defend  ejectment  against  or  by  the  heir.20 

§81.      Continued  —  Executors.        A   testamentary   executor 

15  Fowle  V.  Merrill,  10  Allen,  350;  after  claiming  under  the  mort- 
Torrey  v.  Cook,  116  Mass.  163.  gagor  with  constructive  notice  that 

16  Donohue  v.  Chase,  11  Reporter,  there  had  been  a  valid  sale  under 
225.  the  power,  although  the  deed  may 

17  Hamilton  v.  Lubukee,  51  111.  be  defectively  executed  so  as  not 
415;  but  see  Hosmer  v.  Campbell,  to  pass  the  legal  title.  Gibbons  v. 
98  111.  572.  Hoag,  95  111.  45. 

IS  Hosmer    v.    Campbell.    98    111.  is  Although  it  seems  a  properly 

572.     Where  a  deed  for  land  sold  conducted  sale,  after  confirmation, 

under  a  power  in  a  mortgage,  re-  will  vest  an  equitable  title  in  the 

citing  correctly  all  the  facts  show-  purchaser. 

ing  a  right  to  make  the  sale,  is  re-  20  Doe   v.    Hardy,    52    Ala.    291; 

corded    in    apt    time,    the    record  Gridley  v.  Phillips,  5  Kan.  349. 
thereof  will  affect  all  persons  there- 


FIDUCIARIES.  107 

stands  iu  the  place  of  aud  represents  his  testator,  lie  derives 
Lis  power  primarily  from  the  will,  and  in  this  respect  differs 
soniewlial  from  an  administrator,  whose  sole  power  is  derived 
from  the  law  and  the  directions  of  the  conrt.-'  When  acting 
under  a  naked  testamentary  appointment,  his  powers  are 
coextensive  with  those  of  the  administrator,  and  he  is  bound 
by  the  same  rules  and  subject  to  the  same  restrictions.  But 
the  executor  may  also  be  a  tru8tee,22  and,  when  acting  as 
such,  the  scope  of  his  powers  is  measured  and  limited  by  the 
will  which  apjioints  him.  Under  his  testamentary  authority 
he  may  sell  land  and  otherwise  execute  the  trusts  and  exercise 
the  powers  enumerated  and  conferred  in  the  will,  subject  to 
the  general  regulations  of  the  statute,  and  free  from  the  con- 
trol or  intervention  of  a  court  ;-^  but  where  authority  is  not 
expressly  given,  or  where,  during  the  administration,  he  per- 
forms the  ordinary  offices  of  an  executor,  as  where  land  is 
sold  to  pay  the  debts  of  decedent,  no  express  power  being 
given,  he  must  first  obtain  authority  or  license  from  the  pro- 
bate court;  and  his  sale  must  be  reported  to  and  confirmed 
by  such  court  before  a  deed  can  lawfully  issue  to  the  pur- 
chaser. 

§  82.  Continued  —  Administrators.  An  administrator  is 
regarded  as  an  executive  otiicer  of  the  court,  while  he  also 
occupies  the  relation  of  trustee  to  the  estate,  its  creditors  and 
distributees.24  Although  he  may  not  possess  as  much  power 
.as  an  executor,  the  latter  deriving  his  power  from  the  testator 
and  the  law,  and  the  administrator  from  the  law  only,-'^  he  yet 
possesses  all  necessary  power  to  sell  property,  negotiate  secu- 
rities, and  to  settle  and  pay  debts,-^  but  under  the  order  and 

21  Walker  v.  Craig,  18  111.   116;    to  sell  lands.    Skinner  v.  Wood,  76 
Van  Wickle  v.  Calvin,  23  La.  Ann.    N.  C.  109. 

205;  Gilkey  v.  Hamilton,  22  Mich.  ^<  Wingate  v.   Pool,   25   111.   118; 

283.  State  v.  Meagher,  44  Mo.  356. 

22  Pitts  V.  Singleton,  44  Ala.  363.  -•';  Gilkey  v.   Hamilton.  22   Mich. 

23  Buckingham     v.     Wesson,     54  283. 

Miss.  526;    Whitman  v.  Fisher,  74  2c  Walker  v.   Craig,    18    111.    116. 

111.  147;   Cronise  v.  Hardt,  47  Md.  Real  estate  cannot  be  sold  by  an 

433;  Jelks  V.  Barrett,  52  Miss.  315;  administrator  unless  the  personal 

Hughes  V.  Washington,  72  111.  84.  estate    is    insufficient    to    pay   the 

But   the   power   must  be  explicit;  liabilities;  and,  ordinarily,  only  so 

general  words  do  not  confer  power  much  should  be  sold  as  is  neces- 


108  THE    PARTIES. 

direction  of  the  court.  He  takes  neither  an  estate,  title  nor 
interest  in  the  hinds  of  his  intestate,^'^  but  a  mere  naked  power 
to  sell  for  specific  purposes.^s  He  takes  the  land  as  he  finds 
it,2^  and,  having  no  interest  therein,  can  maintain  no  action 
to  perfect  the  title  or  relieve  it  of  any  burden,3o  and  must 
sell  it  as  he  finds  it.^^  The  power  to  sell  is  a  personal  trust, 
which  cannot  be  delegated  ;32  and  the  sale,  being  a  fiduciary 
act  based  upon  statute,  must  strictly  comply  with  all  the  pro- 
visions of  law.33 

The  doctrine  of  caveat  emptor  applies  to  all  sales  by 
an  administratorj^"*  or  other  officer  acting  in  a  ministerial 
capacity;  and  the  purchaser,  who  is  presumed  to  have  made 
all  necessary  inquiries,  takes  the  title  at  his  peril,^^  and  sub- 
ject to  all  liens  except  those  for  the  payment  of  which  the 
land  is  sold.^*^  The  purchaser  has  no  right  to  the  land  until 
the  sale  has  been  confirmed  ;^'^  but  where  the  sale  has  been 
made  under  a  proper  order  of  the  court,  and  reported  to  and 
confirmed  by  it,  it  conveys  title  even  though  the  proceedings 
be  irregular."^ 

It  may  happen  that  an  executor  or  administrator,  without 
authority,  invests  the  funds  of  the  decedent's  estate  in  land; 
or  he  may  take  land  in  payment  of  a  debt  due  to  the  estate 
which  he  represents,  or  may  purchase  it  for  the  protection  of 
the  estate  at  an  execution  sale  under  a  judgment  belonging 
to  the  estate.  Under  such  circumstances  the  executor  or 
administrator  in  one  sense  holds  the  land  in  trust  for  the 
persons  beneficially  interested  in  the  estate,  and  can  be  com- 
pelled to  account  for  it.  Such  land,  however,  would  not  come 
under  the  same  rules  as  if  it  had  been  the  property  of  the 

sary  for  that  purpose.     Newcomer  33  Fell    v.    Young,    63    111.    106; 

V.   Wallace,  30  Ind.  216;    Foley  v.  Lockwood  v.    Sturdevant,   6  Conn. 

McDonald,  46  Miss.  238.  386;    Corwin    v.    Merritt,    3    Barb. 

27  Ryan  V.   Duncan,   88   111.   144;  341. 

Stuart  V.  Allen,  16  Cal.  473.  34  McConnell    v.    Smith,    39    111. 

28  Smith    V.    McConnell,    17    111.    279. 

135;  Floyd  v.  Herring,  64  N.  C.  35  Bishop  v.  O'Connor,  69  111.  431. 
409.  3fi  Henderson    v.    "Whitinger,    56 

29  Gridley  v.  Watson,  53  111.  186.  Ind.  131. 

30  Le  Moyne  v.  Quimby,  70  111.  37  Mason  v.  Osgood,  64  N.  C.  467; 
399;  Ryan  V.  Duncan,  88  111.  146.  Rawlings  v.   Bailey,   15    111.   178. 

31  Martin  v.  Beasley,  49  Ind.  280.        38  Thorn  v.  Ingram,  25  Ark.  52; 

32  Chambers  v.  Jones,  72  111.  275;  Myer  v.  McDougal,  47  111.  278.  Com- 
Gridley  v.  Philips,  5  Kan.  349.  pare  Chase  v.  Ross,  36  Wis.  267. 


FIDUCIARIES.  109 

decedent  at  the  time  of  his  death;  and  the  eflect  of  a  con- 
veyance to  the  executor  or  administrator  under  circumstances 
simihir  to  those  mentioned  \Yould  be  to  vest  in  such  person 
the  entire  le^Ml  title  with  all  its  incidents,  including  a  full 
power  of  disposition,  he  of  course  remaining  liable  to  account 
for  its  proceeds  to  those  interested  in  the  estate.  So,  too, 
land  bought  in  by  executors  or  administrators  on  a  foreclosure 
of  a  mortgage  belonging  to  the  estate  is  to  be  treated  as 
personal  property  and  to  be  accounted  for  as  such;  and 
whether  the  deed  is  taken  in  the  names  of  such  persons  in 
their  ollicial  capacity  or  individually  is  immaterial  so  far  as 
respects  heirs  and  devisees.  In  such  event  the  entire  title  is 
held  by  such  personal  representatives,  while  the  land  thus 
purchased  by  them  is  regarded  as  a  substitute  for  the  mort- 
gage foreclosed,  and  takes  its  place  for  all  purposes  as  be- 
tween the  executor  or  administrator  and  the  parties  interested 
in  the  estate.  The  land  itself  may  be  sold  by  the  executor 
or  administrator  in  the  exercise  of  their  own  discretion; 
while  the  beneficiaries  under  the  estate  having  no  direct  inter- 
est in  the  property,  cannot  dispute  or  question  the  title  of  a 
purchaser.39 

§  83.  Guardians.  The  law  permits  conveyances  by  guard- 
ians, conservators,  committees,  etc.,  of  the  real  estate  of  their 
wards  whenever  the  sale  of  such  property  may  be  necessary 
or  expedient  for  the  payment  of  debts,  the  support  and  educa- 
tion of  the  ward,  an  investment  of  the  proceeds,  or  other 
similar  conditions.  Such  property  can  only  be  sold,  however, 
under  the  order  of  a  court  of  competent  jurisdiction,  and  a 
confirmation  after  sale  is  necessary  to  give  it  validity.^*'  A 
conveyance  by  the  guardian  in  any  other  manner  is  unau- 
thorized; and  where  one  purchases  the  real  estate  of  minora 
from  a  guardian,  directed  by  order  of  court  to  sell  it,  not- 
withstanding he  takes  a  deed  from  such  guardian,  if  the  sale 
is  never  reported  to  or  confirmed  by  the  court,  he  cannot  main- 
tain his  title  against  a  subsequent  conveyance  made  by  the 
minors  after  coming  of  age."*^ 

30  Lockman   v.   Reilly,  95   N.   Y.  Mich.  188;  Chapin  v.  Curtenius.  15 

64;  Long  v.  O'Fallon.  19  How.  (U.  111.   427. 

S.)  116.  ^1  Titman  v.  Riker.  10  Atl.  Rep. 

40  People    V.    Circuit    Judge,    19  397.    The  guardian  in  such  cases  la 

Mich.  296;   White  v.  Clawson,  79  the   agent  of  the  court,  and  can 


110  THE    PARTIES. 

Tlu'  I'ii^lit  of  u  guardian  to  thus  dispose  of  the  property  of 
his  ward  is  given  by  statute,  and  strict  compliance  with  stat- 
utory requirements  is  always  exacted.  A  person  who  pur- 
chases at  a  guardian's  sale,  or  even  one  who  purchases  from 
the  vendee  of  that  sale,  must  take  notice  at  his  peril  of  the 
authority  of  the  guardian  to  make  same,  and  if  any  of  the 
mandatory  provisions  of  the  statute  have  not  been  complied 
with  the  sale  will  be  void.^^  ^^nd  it  seems,  that  even  though 
the  proceeds  of  the  sale  may  have  been  applied  toward  the 
maintenance  and  education  of  the  wards,  this  will  not  estop 
them  from  denying  the  validity  of  same,43  although,  as  to  this 
point,  the  authorities  are  not  agreed.'*^ 

§  84.  Trustees  as  purchasers — The  rule  stated.  As  a  vendee, 
a  trustee  is  under  stringent  restrictions,  so  far  as  his  dealings 
with  the  trust  property  is  concerned;  and  the  rule  is  beyond 
dispute  that  the  purchase  by  a  trustee,  directly  or  indirectly, 
of  any  of  the  trust  estate  which  he  is  empow^ered  to  sell  as  a 
trustee,  whether  at  public  auction  or  private  sale,  is  voidable 
at  the  election  of  the  beneficiaries  of  the  trust;  and  this  rule 
will  be  enforced  without  regard  to  the  question  of  good  faith 
or  adequacy  of  price,  and  whether  the  trustee  has  or  has  not 
a  personal  interest  in  the  property.'*^ 

Nor  is  the  application  of  this  rule  confined  to  any  particular 

take   no   lawful   step   without   au-  42  Bachelor  v.  Korb,  58  Neb.  122; 

thority   from   his   principal.     The  Williams   v.    Morton,    38    Me.    47; 

nature  and  extent  of  his  authority  Tracy  v.  Roberts,  88  Me.  310. 

is  derived  from  the  statute,  which  13  Wilkinson    v.    Filby,   24    Wis, 

is    the    foundation    for    the    whole  441;    Requa   v.    Holmes,    26    N.   Y. 

proceeding.     As  a  rule  the  statute  338;    Rowe    v.    Griffiths,    57    Neb. 

is   peremptory,  and   its  provisions  488. 

cannot  be  disregarded  or  avoided;  44  See  Deford  v.  Mercer,  24  Iowa, 

and  if,  in  dealing  with  the  rights  118;   Penn  v.  Heisey,  19  111.  265. 

of    infants    or    others    under    dis-  45  Nor  is  it  sufficient  to  enable  a 

iibility,  a  guardian  might  in  one  trustee  to  make  such  a  purchase 

particular  take  the  law  in  his  own  that  the  formal  leave  to  buy,  which 

hands  and  assume  prerogatives  of  is  usually  granted  to  the  parties  in 

the  court,  then  he  might  in  every  a  foreclosure  or  partition  sale,  has 

other.    And  the  same  remarks  are  been    inserted    in    a   judgment   or 

applicable  to  the  purchaser.    If  he  decree  authorizing  the  sale.  Such  a 

accepts   title    under    such    circum-  provision  is  inserted  merely  to  ob- 

stances  he  does  it  at  his  peril,  and  viate  the  technical  rule  that  par- 

with  every  means  at  hand  f.or  the  ties  to  the  action  cannot  buy,  and 

fullest  information.  is  not  intended  to  determine  equi- 


FIDUCIARIES.  Ill 

class  of  persons,  such  as  }i;iiar(lians,  oxeeutois,  trustees,  etc.; 
but  it  is  a  rule  of  universal  application  to  all  persons  coming 
within  its  principle,  which  is  that  no  person  can  be  permitted 
to  purchase  an  interest  where  he  has  a  duty  to  perform  that 
is  inconsistent  with  the  character  of  purchaser,^"  or  do  any 
other  act  which  has  a  tendency  to  interfere  with  the  faithful 
discharge  of  such  duty.-*'^  The  reason  of  the  rule  is  not 
because  trustees  might  not,  in  many  instances,  make  fair  and 
honest  disposition  of  the  trust  estate  to  themselves,  but 
because  the  probability  is  so  great  that  they  would  frequently 
do  otherwise,  without  danger  of  detection,  that  the  law  con- 
siders it  better  policy  to  prohibit  such  purchases  entirely  than 
to  assume  them  to  be  valid  except  where  they  can  be  proved 
to  be  fraudulent.  Therefore,  it  is  wholly  immaterial  that  the 
transaction  may  have  been  fair,  profitable  or  advantageous 
to  the  bent'ticiary.  The  rule  forbidding  this  contlict  between 
interest  and  duty  is  no  respecter  of  persons.  It  imputes  con- 
structive fraud  because  the  temptation  to  actual  fraud  and 
the  facility  of  concealing  it  are  so  great;  and  it  imjjutes  it  to 
all  alike,  who  come  within  its  scope,  however  much  or  how- 
ever little  open  to  suspicion  of  actual  fraud.'*^ 

It  is  further  to  be  observed  that  the  principle  which  pro- 
hibits the  trustee  from  becoming  a  purchaser  extends  to  all 
sales  of  the  trust  property,  whether  made  by  the  trustee 
himself  under  his  powers  as  trustee  or  under  an  adverse  pro- 
ceeding. As  a  general  trustee  of  the  property  it  is  his  duty 
to  make  it  bring  as  much  as  possible  at  any  sale  that  may 
take  place;  and,  therefore,  he  cannot  put  himself  in  a  situa- 
tion where  it  becomes  his  interest  that  the  property  should 
bring  the  least  sum.-*'-* 

Agents  may  be  quasi  trustees,  and  so  far  be  brought  within 

ties    between    the    parties    to    the  Miss.  553;    Beauvelt  v.  Acl^erman, 

action,  or  l)et\veen  such  parties  and  20  N.  J.  Eq.  141;   Campbell  v.  Mc- 

others.     Fulton  v.  Whitney,  66  N.  Lain,  51  Pa.  St.  200;    Dempster  v. 

Y.  548.  West.  69  111.  613;    Higgins  v.  Cur- 

■»«  Blake   v.    R.   R.   Co.   56    N.   Y.  tis,  82  111.  28. 

485;    Cook   v.    Berlin   Mill    Co.   43  *?  Gibson  v.  Herriott.  55  Ark.  85. 

Wis.  433;  Crumley  v.  Webb,  44  Mo.  -ts  Cook  v.  Berlin  Mill  Co.  43  Wis. 

444;   Roberts  v.  Roberts,  65  N.  C.  433. 

27;   Goodwin  v.   Goodwin,  48  Ind.  ^o  Martin    v.    Wyncoop,    12    Ind. 

584;     Sheldon    v.    Rice,    30    Mich.  266. 
296;    McGowan    v.    McGowan,    48 


112  THE    PARTIES. 

the  priuciplc  of  the  biuud  rule  applicable  to  trustees  generally 
that  they  cannot  become  purchasers  from  their  principals; 
but  an  agent  generally  comes  within  this  rule  only  when  his 
agency  is  so  connected  with  the  sale  as  to  make  it  his  duty  to 
obtain  the  best  terms  for  his  principal,  when  he  cannot  be 
agent  to  sell  and  principal  to  buy. 

But  after  the  trust  is  executed  a  trustee  stands  in  the  same 
position  as  a  stranger.  If,  as  such  trustee,  he  has  made  a  sale 
under  his  power,  or  in  good  faith  has  otherwise  fully  dis- 
charged his  trust,  so  that  he  no  longer  occupies  confidential 
relations  to  any  one  claiming  the  property,  he  is  not  by  law 
forbidden  to  deal  with  what  was  the  trust  property  the  same 
as  a  stranger;  and,  acting  in  good  faith,  he  may  become 
the  owner  by  purchase  or  otherwise.^^ 

§  85.  Continued — Exceptions  to  and  qualifications  of  the 
rule.  Where,  however,  a  trustee  has  an  interest  to  protect 
by  bidding  at  a  sale  of  the  trust  property,  and  for  this  pur- 
pose makes  a  special  application  to  the  court  for  permission 
to  bid,  which  upon  the  hearing  of  all  the  parties  interested 
is  granted,  he  may  make  a  purchase  which  is  valid  and  bind- 
ing upon  all  the  parties  interested,  and  under  which  he  can 
acquire  a  perfect  title.^^ 

So,  also,  where  a  trustee  has  purchased  land  at  his  own 
sale  which  is  afterwards  clearly  and  unequivocally  aflSrmed 
by  the  beneficiary,  if  all  parties  have  acted  in  good  faith,  and 
the  beneficiary,  being  under  no  disability  and  with  full  knowl- 
edge of  all  the  facts,  has  consented  thereto,  he  may  be  con- 
cluded thereby,  and  the  title  in  the  hands  of  the  trustee  be 
unassailable  for  this  cause,^^  and  even  though  there  has  been 
no  direct  aflfirmance  a  beneficiary  may  still  be  precluded  from 
relief  by  his  own  laches,  neglect  and  delay.  A  sale  of  this 
kind  is  voidable  at  the  application  of  the  person  holding  the 
equity,  provided  such  application  is  made  in  a  reasonable 
time,  without  any  showing  of  fraud  or  injury,  but  this  right 
may  be  lost  through  laches.  Courts  of  equity  are  slow  to 
grant  relief  on  stale  claims  and  while  there  are  no  established 

50  Bush  V.  Sherman,  80  111.  160;  v.  Lewis,  79  N.  C.  426;  Michoud  v. 
Watson  V.  Sherman,  84  III.  263.  Girod,  4  How.   (U.  S.)   503. 

51  Gallatin  v.  Cunningham,  8  ■'-  Boerum  v.  Schenck,  41  N.  Y. 
Cow.  (N.  Y.)  361;  Colgate  v.  Col-  182;  Brantly  v.  Cheeley,  42  Ga. 
gate,  23  N.  J.  Eq.  372;  Froneberger  209;  Scott  v.  Mann,  33  Tex.  721. 


FIDUCIARIES. 


ii;j 


rules  by  which  laches  can  always  be  determined,  the  matter 
beinj,'  usually  left  to  the  sound  discretion  of  the  court/'^  yet 
if  the  beneficiary  stands  by  and  sees  the  property  being  devel- 
oped and  augmented  in  value  by  lasting  and  permanent 
iiiiprovenients,  or  when  from  other  reasons  growing  out  of 
passive  accpiiescence  or  delay  it  would  be  ineipiitable  or 
unjust  to  permit  Iiini  to  reclaim  the  property,  the  laches  may 
furnish  sufTicient  grounds  to  preclude  him  from  relief.-'"' 

A  marked  exception  to  the  rule  is  also  made  in  favor  of 
guardians  ad  litem.  Unlike  other  guardians  and  ordinary 
trustees,  a  guardian  nd  litem  has  no  authority  or  control  over 
the  person  or  property  of  the  infant  for  whom  he  acts,  and 
no  right  to  receive  or  administer  the  proceeds  of  the  minor's 
proi)erty  which  may  be  sold  in  the  suit  or  proceeding  in  which 
he  acts.  If  he  has  fairly  advised  the  court  of  the  infant's 
rights,  and  done  all  for  him  that  the  facts  of  the  case  required 
him  to  do,  he  may  purchase  and  hold  in  his  own  right  the 
property  of  the  infant,  sold  under  an  order  of  court  in  the 
cause  in  which  he  was  appointed,  provided  such  purchase  was 
in  good  faith  and  for  a  full  and  valuable  consideration  pa' ' 
by  him."'''^ 


53  Sullivan  v.  R.  R.  Co.  94  U.  S. 
806;  Castner  v.  Walrod,  83  111.  171; 
Spaulding  v.  Farwell,  70  Me.  17; 
Hanson  v.  Worthington,  12  Md. 
418;  Searcy  v.  Hunter,  81  Tex.  644. 

•'■'*  Oil  Co.  V.  Marbury,  91  U.  S. 
587;   Flanders  v.  Flanders,  23  Ga. 


249;    Compare    Cartwight    v.    Mc- 
Gowan,  121  111.  388. 

'>^'  The  text  states  the  general 
rule  but  it  would  seem  that  in 
some  states  a  guardian  ad  litem  is, 
by  statute,  placed  under  the  same 
disabilities  as  other  trustees.  See 
Boyer  v.  East,  161  N.  Y.  580. 


CHAPTER   III. 


THE  MEMORANDUM. 


§    86.    Contract  and  memorandum  §    95. 

distinguished.  96. 

87.  Statutory  requirements.  97. 

88.  The  signature. 

89.  Signature     of     one     party  98. 

only  sufficient.  99. 

90.  Signature  by  agent.  100. 

91.  Signature  by  corporation.  101. 

92.  The  contracting  parties.  102. 

93.  The  terms.  103. 

94.  The  consideration. 


The  purchase  price. 

Description  of  the  property. 

The  interest  to  be  con- 
veyed. 

Time. 

Receipts. 

Letters. 

Telegrams. 

Delivery. 

Continued  —  Undelivered 
deeds. 


§  86.  Contract  and  memorandum  distinguished.  It  is  a 
familiar  proposition  that  contracts  for  the  sale  of  land,  to 
insure  legal  enforcement,  must  be  in  writing.  Strictly  speak- 
ing, however,  this  is  an  error;  for  it  must  be  observed  that 
the  contract  itself,  and  the  memorandum  which  is  necessary 
to  its  validity  under  the  statute  of  frauds,  are  in  their  nature 
different  and  distinct  things.^  The  contract,  in  a  majority  of 
cases,  is  fully  made  by  parol  before  the  memorandum  is  pre- 
pared, and  may  be  perfect  and  complete,  and  under  certain 
circumstances  enforceable  without  having  been  reduced  to 
writing.  The  contract  itself,  so  far  as  respects  its  validity,^ 
is  unaffected  by  the  statute,  and  if  executed  the  rights  and 


1  Lerned  v.  Wannemacher,  9  Al- 
len (Mass.),  416;  Williams  v. 
Bacon,  2  Gray  (Mass.),  391;  Ide  v. 
Stanton,  15  Vt.  690;  Gale  v.  Nixon, 
6  Cow.  (N.  Y.)  445;  and  see  Mont- 
gomery v.  Edwards,  46  Vt.  151. 

2  Mr.  Causten  Browne,  in  his  val- 
uable treatise  on  the  statute  of 
frauds,  has  defined  the  operation 
of  the  statute  as  the  mere  pre- 
scription of  a  rule  of  evidence.  In 
the  last  (4th)  edition  he  recedes 
somewhat  from  his  proposition, 
though  still  asserting  his  belief 
that  this  view  is  the  true  one.    It 


would  seem  that  this  proposition 
should  pass  unchallenged  as  a  rule 
that  is  fully  sustained  by  reason 
and  precedent,  and  that  he  truly 
states  when  he  says:  "The  cases 
which  are  inconsistent  with  it  rest 
upon  uncertain  ground."  Whatever 
may  be  its  effect  in  respect  to  its 
other  clauses  it  is  certain  that  the 
construction  of  and  operation  giv- 
en to  the  fourth  section — the  one 
relating  to  contracts  and  sales  of 
lands — by  the  courts  of  the  coun- 
try, is  in  full  accord  with  Mr. 
Browne's  first  definition. 


114 


THE    MEMORANDUM.  115 

obligiitions  of  the  parties  remain  the  same  as  though  a  strict 
compliance  had  been  made.'*  The  memorandum  is  only  legal 
evidence  of  the  conli'act. 

§  87.  Statutory  requirements.  The  question  as  to  what  con- 
stitutes a  memorandum  or  note  in  writing,  signed  by  the 
party  to  be  charged,  in  comi)liance  with  the  recjuirements  of 
the  statute,  has  been  the  sul)ject  of  much  discussion  and 
greatly  varying  decisions  ever  since  its  adoption.  The  natural 
repugnance  of  right-thinking  men  to  permit  the  success  of 
unfair  dealings  has  furnished  many  instances  where  the 
language  and  meaning  of  the  statute  has  been  manifestly 
strained;  and  many  cases  have  gone  to  the  very  verge,  if  not 
beyond  the  bounds,  of  a  reasonable  and  fair  construction,  or 
rather  facts  have  been  strained  to  constitute  a  compliance 
with  statutory  requirements. 

The  statutory  directions  concerning  the  form  and  contents 
of  memoranda  of  sale  are  at  best  extremely  meager,  and 
questions  relative  to  their  suflticiency  in  this  particular  are 
largely  left  to  the  discretion  of  the  courts.  It  is  a  peremi>tory 
mandate  of  the  statute  that  they  shall  be  in  writing  and 
signed  by  the  person  to  be  charged  or  his  agent;  but,  aside 
from  this,  form  is  not  important,^  nor  need  they  be  attended 
with  any  particular  solemnities.'^  And  while  they  must  be 
in  writing,  the  method  employed  is  immaterial,  for  the  written 
characters  may  consist  of  manuscript  or  print,  or  both  com- 
bined;*^ and  though  made  with  a  lead-pencil  they  will  still  be 
sufficient.'^  Nor  is  it  necessary  that  the  contract  be  evidenced 
by  a  single  document,'^  for  all  the  contemporaneous  writings 
between  the  parties  relating  to  the  same  subject-matter  are 
admissible  in  evidence  to  show  the  transaction.^  It  is  essen- 
tial that  all  the  terms  of  the  contract  be  specifically  and  dis- 

3  Ryan    v.    Tomlinson,    39    Cal.  e  But   when   a   printed    form    is 

639;    Stone  v.  Dennison,   13  Pick,  filled  by  writing,  the  written  part 

(Mass.)  1.  will     control     in     construing    the 

*  Doty  V.  Wilder,  15  111.  407;  Mc-  contract. 

Connell   v.   Brillhart,   17    111.  354;  7  Merritt  v.  Clason,  12  John.  (N. 

Tripp   V.    Bishop,   56   Pa.   St.   424;  Y.)    102. 

Jenkins  v.  Harrison,  66  Ala.  345.  s  McConnell  v.   Brillhart.   17  111. 

••  Bryne  v.  Marshall,  44  Ala.  355;  354;  Whelan  v.  Sullivan,  102  Mass. 

Williams  v.  Morris,  95  U.  S.  444;  204;  Johnson  v.  Buck,  35  N.  J.  L. 

Hawkins  v.  Chace,  19  Pick.  (Mass.)  338. 

502.  » Nichols   v.   Johnson,   10   Conn. 


116  THE   MEMORANDUM. 

tinctly  set  forth  ;io  that  the  subject-matter  be  stated  or 
described  with  convenient  certainty ;ii  and  that  the  parties 
be  named  or  fully  identified.^ ^  j^  other  words,  that  all  the 
essential  terms  and  conditions  of  the  contract  shall  be 
expressed  with  such  reasonable  certainty  that  the  whole 
aj2;reement  of  the  parties  may  be  ascertained  from  the  mem- 
orandum without  any  aid  from  parol  testimony.^^  Where 
these  particulars  satisfactorily  appear  the  manner  in  which 
they  are  stated  makes  but  little  difference;  for  the  numerous 
cases  which  have  arisen  in  every  state  in  the  Union  involving 
the  construction  of  the  statute  of  frauds,  and  in  which  the 
principles  which  must  control  in  such  construction  have  been 
discussed,  all  unite  in  formulating  the  rule  that  no  formal 
language  is  required,^*  and  that  anything  from  which  the 
intention  may  be  gathered,  as  in  other  contracts,  will  be 
sufficient;  and  that  any  kind  of  writing,  from  a  solemn  deed 
to  mere  hasty  notes  or  memoranda  in  books,  letters  or  papers, 
provided  they  contain  upon  their  face  or  by  reference  to  other 
writings  the  essential  matters  just  mentioned,  will  constitute 
a  sufficient  compliance  with  the  statute  and  take  the  contract 
out  of  its  operation.^  5 

192;  Abeel  v.  Radcliff,  13  John.  McFarson's  Appeal,  11  Pa.  St.  503; 
(N.  Y.)    279;   McGuire  v.  Stevens,    Ewins  v.  Gordon,  49  N.  H.  444.    An 

42  Miss.  724.  instrument  which  contains  all  the 

10  Davis  V.  Shields,  26  Wend.  (N.  essentials  of  a  complete  contract 
Y.)  341;  Anderson  v.  Harold,  10  may  be  treated  as  such,  although 
Ohio,  399;  Phillips  v.  Adams,  70  in  form  it  purports  to  be  merely  a 
Ala.  373;  Gault  v.  Stormont,  51  receipt.  Schweitzer  v.  Connor,  57 
Mich.  636;  Jenkins  v.  Harrison,  66  Wis.  177.  Where  a  party  desiring 
Ala.  345;  Ide  v.  Stanton,  15  Vt.  to  purchase  land  applies  to  the 
685.  agent  of  the  owner  and  makes  an 

11  Waterman  v.  Meigs,  4  Gush,  offer  definite  as  to  price,  terms, 
(Mass.)  497;  O'Donnell  v.  Leaman,  etc.,  and  the  agent  submits  the  of- 

43  Me.  158;  Johnson  v.  Kellogg,  7  fer  to  his  principal  by  letter,  and 
Heisk.  (Tenn.)  262;  Smith  v.  Stan-  afterwards  writes  to  the  purchaser 
ton,  15  Vt.  685.  that  the   owner  has  accepted  the 

12  Webster  v.  Ela,  5  N.  H.  540;  offer,  and  the  agent  sends  to  the 
Eppich  v.  Clifford,  6  Col.  493.  principal  a  deed  to  be  executed  by 

13  Williams  v.  Robinson,  73  Me.  him  in  accordance  with  the  terms 
186;  Kopp  V.  Reiter,  146  111.  473.  of  such  offer,  which  deed  is  exe- 

14  McConnell  v.  Brillhart,  17  111.  cuted  by  the  principal  and  re- 
354.  turned  to  the  agent,  and  the  pur' 

15  Wood  V.  Davis,  82  111.  311;  Bar-  chaser,  upon  receiving  the  letter 
ry  V.  Coombe,  1  Pet.  (U.  S.)  640;  notifying  him  that  his  offer  is  ac- 


THE    MEMORANDUM.  117 

A  substantial  difTorcnce  exists  in  some  states  between  i\ut 
original  phraseology  of  the  statute  and  subsequent  re-enact- 
ments. Thus,  while  the  original  provision  required  the  mem- 
orandum to  be  signed  by  the  person  to  be  charged,  subsequent 
enactments,  in  some  instances,  require  it  to  be  "subscribed  by 
the  i)arty  by  whom  the  sale  is  to  be  made."^^  Under  such  a 
statute  the  rulings  are  much  more  strict  and  arbitrary  than 
under  the  statute  in  its  original  form.  An  express  and  distinct 
agreement  in  writing  subscribed  by  the  vendor  or  his  agent 
is,  in  such  a  case,  an  absolute  necessity,  and  a  contract  signed 
by  the  vendee  only  has  no  effect  or  validity ,1"^  notwithstanding 
he  may  be  the  person  to  be  charged. 

§  88.  The  signature.  The  only  important  fonual  requisite 
mentioned  by  the  statute  is  that  the  evidence  of  the  contract 
shall  be  signed  by  the  i)erson  to  be  charged  therewith  or  his 
agent  thereunto  lawfully  authorized.  This,  however,  is 
imperative;  and  it  is  not  enough  that  the  note  or  memoran- 
dum of  the  agreement  is  in  the  handwriting  of  such  party,  so 
long  as  his  name  does  not  appear  as  a  signature.^^  But  just 
what  is  to  be  regarded  as  a  signature  is  not  always  a  matter 
of  easy  determination.  In  the  earlier  cases  it  has,  in  many 
instances,  been  held  that  the  manner  or  place  of  signing  is 
immaterial,  provided  the  name  is  inserted  with  the  intention 
of  giving  assent  and  for  the  purpose  of  completing  or  closing 
the    contract.^ ^     Hence,    a    contract    commencing,    '*I,    John 

cepted,  goes  to  the  agent  to  close  stated,  and  an  agreement  to  pur- 

up  the  transaction,  and  the  agent  chase    the    property    upon    these 

then    refuses   to   consummate   the  terms  subscribed  by  a  purchaser, 

trade,  these  facts  constitute  a  valid  subsequently    written    across    the 

contract,   not    within   the    statute,  face  of  the  paper  while  unrevoked 

for   a   breach    of   which    the    pur-  in  the  hands  of  the  broker,  do  not, 

chaser    can    maintain    a    suit    for  taken  either  separately  or  together, 

damages  against  the  owner  of  the  form  a  contract  for  the  sale  of  the 

land.     Wood  v.  Davis,  82  III.  311.  land  binding  upon  the  owner.  Hay- 

i«  This   is   the    language   of   the  dock  v.   Stow,   40  N.   Y.  363. 

New  York  statute.  is  Champlin  v.  Parrish,  11  Paige 

17  Davis  V.  Shields,  26  Wend.  (N.  (N.  Y.),  405;  Henry  v.  Colby,  3 
Y.)  341;  Champlin  v.  Parrish,  11  Brews.  (Pa.)  171;  Anderson  y. 
Paige  (N.  Y.),  406.  Thus,  a  writ-  Harold,  10  Ohio,  399;  Wade  v.  New- 
ten  agreement  subscribed  by  the  bern,  77  N.  C.  460. 
owner  of  land,  authorizing  a  real  lo  Clason  v.  Bailey,  14  Johns.  (N. 
estate  broker  to  sell  it  upon  cer-  Y.)  484;  Hawkins  v.  Chace,  19 
tain     terms     therein     specifically  Pick.    (Mass.)    502;    Anderson   v. 


118 


THE  MEMORANDUM. 


Smith,"  etc.,  but  without  subscription  of  any  kind,  was  held 
to  be  sufRcientlj  signed.^o  Undoubtedly,  when  the  name  so 
wiitten  is  intended  for  a  sij^jnature  and  to  give  authenticity  to 
the  instrument,  courts,  in  furtherance  of  the  ascertained  inten- 
tion of  the  parties,  will  give  effect  to  it  as  such;^!  but  the 
later  and  better  rule  would  seem  to  be,  that  names  in  the 
body  of  an  instrument  are  not  equivalent  to  signature  where 
there  has  been  no  subscription,22  for  usually  they  must  of 
necessity  be  so  introduced  to  make  the  instrument  intelli- 
gible;-'^ while  in  every  document  drawn  with  any  degree  of 
formality  the  testatum  clause  discloses  an  intention  to  place 
the  signature  at  the  end  if  to  be  appended  at  all.^"* 

A  signature,  ordinarily,  is  considered  as  consisting  of  a 
party's  name, ,  or  the  term  or  appellation  by  which  he  is 
known  and  identified  in  society.  It  may,  however,  be  a  full 
name   or   simple   initials,^^    or   even  a   mark,"*'    provided   it 


Harold,  10  Ohio.  399;   Fulshear  v. 
Randon,  18  Tex.  275. 

20  See  Barry  v.  Coombe,  1  Pet. 
(U.  S.)  640;  Penniman  v.  Harts- 
horn, 13  Mass.  87;  Hawkins  v. 
Chace,  19  Pick.  (Mass.)  502.  "But 
it  may  be  questioned,"  observes 
Mr.  Browne,  "whether  this  is  justi- 
fied by  the  authorities.  Where  in- 
struments commencing  in  the  first 
person  have  been  taken  to  be  well 
signed,  without  subsequent  sub- 
scription, they  generally  appear  to 
have  been  so  attached,  or  accom- 
panied by  acts  of  the  party  so 
clearly  showing  that  he  regarded 
the  instrument  as  complete  as  to 
repel  the  presumption  of  an  inten- 
tion to  make  a  further  execution." 
Browne  Stat.  Frauds,  §  357.  And 
it  would  seem  that  in  cases  of  in- 
struments commencing  in  the  third 
person,  as  "Mr.  A.  B.  agrees,"  etc., 
such  a  presumption  does  not  arise. 
Id.  And  see  Adams  v.  Field,  21  Vt. 
256;  Allen  v.  Everitt,  12  B.  Mon. 
(Ky.)  371;  Armstrong  v.  Arm- 
strong, 29  Ala.  538. 


21  Barry  v.  Coombe,  1  Pet.  (U. 
S.)  640;  McConnell  v.  Brillhart,  17 
111.  354;  Clason  v.  Bailey,  14  Johns. 
(N.  Y.)  484;  Penniman  v.  Harts- 
horn, 13  Mass.  87.  This  method 
seems  to  be  good  at  common  law; 
see  2  Kent's  Com.  511;  1  Dart  Vend. 
(6th  ed.)  270.  But  in  every  in- 
stance, when  the  name  is  written 
near  the  beginning  of  the  docu- 
ment, where,  as  a  rule,  names  are 
inserted  by  way  of  description  of 
the  person  who  is  to  execute  it, 
and  rarely  as  signatures,  it  must, 
before  it  can  be  held  to  have  been 
inserted  for  the  purpose  of  vali- 
dating the  instrument,  be  proved  to 
have  been  written  with  that  in- 
tent. Matter  of  Booth,  127  N.  Y. 
109. 

22  Thomas  v.  Caldwell.  50  111. 
138;  Hawkins  v.  Chace,  19  Pick. 
(Mass.)  502;  Wise  v.  Ray,  3  Iowa, 
430;  McMillen  v.  Terrell,  23  Ind. 
163. 

23  Matter  of  Booth,  127  N.  Y.  109. 

24  Thomas  v.  Caldwell,  50  111.  138. 
2s  Sanborn    v.    Flagler,    9    Allen 


THE    MEMORANDUM.  119 

serves  tlic  jjiirposc  of  idciitirKnlutii  and  at  llic  same  time 
shows  intent.  Nor  is  it  material  in  wluit  manner  the  signature 
is  ajjpended;  for  it  makes  no  difl'ercuee,  so  fai'  as  the  sifter's 
liability  is  concerned,  whether  he  writes  his  name  in  script  or 
roman  h'tters,  oi-  wlicllicr  such  letters  are  made  with  a  pen 
or  with  type,  or  wlu'thcr  he  has  printed,  cnfjraved.  photo- 
<:;raph('d  or  litlioj;raphed  it,  so  long  as  he  adojjts  the  signature 
as  his  own.-^ 

Another  i)oint  in  this  connection,  which  does  not  seem  to 
have  arisen  in  this  country,  or  at  least  has  not  been  brought 
to  the  attention  of  the  writer,  consists  in  the  character  of  the 
signature;  that  is,  the  style  which  the  signer  assumes.  As 
previously  remarked,  a  man's  signature  is  generally  consid- 
ered to  be  his  name;  yet  he  may  sign  by  a  mark,  and  formerly 
em])loyed  only  a  device  by  way  of  seal,  which  was  considered 
a  sutticient  signing.  Thus,  if  a  letter  is  signed  "your  father," 
or  "your  brother"  without  other  words  of  identification,  is 
this  a  signing  within  the  meaning  of  the  law?  The  English 
cases  would  imply  that  it  is  not,  and  that  a  paper  so  attested 
will  not  constitute  a  binding  agreement  on  the  part  of  the 
person  so  attesting.  It  is  held  that  it  is  not  enough  that  the 
party  be  identified,  and  that  there  may  be  in  the  instrument 
a  very  sufficient  description  to  answer  the  purpose  of  identi- 
fication without  a  signing^  that  is,  without  tlie  party  having 
either  i»ut  his  name  to  it,  or  done  some  other  act  intended  by 
him  to  be  equivalent  to  the  actual  signature  of  the  name;^^ 
yat  it  is  difficult  to  ])erceive  why  such  a  subscrii)tion,  evidently 
intended  to  identity  the  person  of  the  writer  and  authenticate 
the  paper  in  exactly  the  same  manner  as  the  written  name, 
does  not  satisfy  the  requirement  of  the  statute  when  it 
creates  no  ambiguity. 

A  misplaced  signature  may  usually  be  explained  by  parol 
testimony,  as  where  a  party  by  mistake  signs  in  the  place 
designated  for  witnesses.  It  would  seem  from  the  early 
English  cases  that  in  matters  of  this  kind  little  or  no  discre- 
tion  was   pennitted   in    construction;    and    Lord    Eldon    is 

(Mass.),  474;  Palmer  v.  Stevens,  1  -7  Weston     v.     Meyers,     33     111. 

Denlo   (N.  Y.),  471;   State  v.  Bell,  424. 

16  N.  C.  313.  -"^  See   Selby   v.    Selby,   3    Meriv. 

•-«  Jackson  v.  Van  Dusen,  5  Johns.  (Eng.  Ch.)  2. 
(N.  Y.)  144. 


120  THE    MEMORANDUM. 

reported  as  s.iying,  "where  a  party  or  principal  or  person  to 
be  bound  si^ns  as,  what  he  cannot  be,  a  witness,  he  cannot  be 
understood  to  sign  otherwise  than  as  principal."^^  The  cor- 
rectness of  this  remark  has  been  questioned  in  later  English 
decisions,  while  the  general  tendency  of  the  American  cases 
has  been  to  permit  the  introduction  of  parol  evidence  to  show 
intent.  Undoubtedly  it  is  important  that  the  signature,  and 
also  the  seal,  of  an  instrument  should  be  in  the  usual  place; 
yet  the  mere  place  of  either  the  signature  or  the  sealing  is  not 
conclusive  as  to  the  intent  with  which  they  are  made.^o 

§  89.  Signature  of  one  party  only  sufficient.  Mutuality  is 
an  indispensable  ingredient  of  every  contract;  and  hence, 
unless  both  parties  are  so  bound  by  the  agreement  that  each 
may  enforce  it  against  the  other,  it  can  have  no  operative 
effect  either  at  law  or  in  equity.  But,  w^hile  this  principle  is 
indisputable,  it  by  no  means  follows  that  a  contract  bearing 
the  signature  of  one  party  only  is  incapable  of  enforcement  for 
this  reason.  The  statute  itself  only  requires  that  the  memo- 
randum shall  be  "signed  by  the  party  to  be  charged  there- 
with ;"  and  this  signature  is  prescribed  rather  as  a  necessary 
evidence  of  the  contract  than  as  an  essential  or  constituent 
part  of  the  engagement  itself.  Even  if  we  concede  that 
mutuality  must  exist  at  the  time  the  agreement  is  entered 
into,  the  lack  of  one  signature  would  not  indicate  anything 
to  the  contrary,  but  only  shows  that  both  parties  have  not 
been  equally  vigilant  in  obtaining  the  legal  w^ritten  evidence 
to  prove  it.  But  it  is  now  well  settled  by  authority  that 
mutuality  of  remedy  existing  at  the  time  action  is  brought  is 
all  that  is  required  to  sustain  the  contract  or  confer  jurisdic- 
tion;^^ and  the  signature  of  one  party  only  will  be  sufficient, 
pro\ided  it  be  the  one  against  whom  enforcement  is  sought.^^ 

29  Coles  V.  Trecothick,  9  Ves.  Where  there  is  a  bill  for  specific 
(Eng.)   251.  performance  in  a  court  of  equity 

30  Richardson  v.  Boynton,  12  Al-  the  exhibition  of  the  bill  makes  the 
len  (Mass.),  138;  Warren  v.  Chap-  complainant  chargeable  as  on  a 
man,  115  Mass.  586;  and  see  Reed  memorandum  of  the  contract 
V.  Drake,  7  Wend.  (N.  Y.)  345.  signed   by  him,   and  this   renders 

•'1  Dresel    v.    Jordan,    104    Mass.  the    remedy   mutual    between   the 

412;   Thayer  v.  Luce,  22   Ohio  St.  parties  at  the  time  when  the  action 

62;    Gartrell   v.   Stafford,   12   Neb.  is  commenced.     Ives  v.  Hazard,  4 

552;  Estes  v.  Furlong,  59  111.  302;  R.  I.  14. 
Louber    v.    Connit,    36    Wis.    176.        ^2  Thayer   v.   Luce,    22   Ohio   St. 


THE    MEMORANDUM.  121 

The  only  object  of  the  statute  is  to  compel  the  production  of 
written  evidence  of  tlic  Icniis  of  the  contract  against  the 
party  sought  to  be  charged  1  hereon,  and  its  only  design  is  to 
I)revent  perjury  and  suhornalion  of  perjury  \)\  refusing  the 
aid  of  the  law  in  the  enforcement  of  any  rights  claimed  under 
it  against  hiiu  without  such  written  evidence.  Therefore,  the 
end  and  objeet  of  the  statute  is  attained  by  written  proof  of 
the  obligation  of  the  defendant  in  an  action  to  enforce;  he 
is  tlie  party  to  be  charged  with  a  liability  dependent  on  and 
resulting  from  the  evidence,  and  he  is  intended  to  be  protected 
against  the  dangers  of  false  oral  testimony .^^ 

Specific  i)erformance  of  a  unilateral  contract  may  always  be 
decreed,  if  it  is  just,  fair  and  reasonable,  and  the  party  sought 
to  be  charged  has  so  bound  himself  as  to  meet  the  require- 
ments of  the  statute,  and  the  other  party  has  elected  to  treat 
the  contract  as  binding  and  to  enforce  it,^^  and  in  such  event 
an  offer  contained  in  a  bill  brought  for  specific  performance 
is  sufTicient  to  charge  the  plaintiff  and  to  create  a  strict 
mutuality.3^ 

When  it  is  considered  that  it  is  not  the  agreement  which 
is  required  to  be  in  writing,  and  that  the  agreement  in  fact  is 
made  before  any  writing  is  had,  and  that  the  agreement  and 
the  memorandum  subsequently  made  to  evidence  it  are  not 
the  same,  the  reason  of  the  law  becomes  apparent. 

§  90.  Signature  by  agent.  By  the  first  and  tliird-^^  sections 
of  the  statute  of  frauds,  as  originally  adopted,  the  writing  is 
required  to  be  signed  by  the  parties  to  the  agreement,  or  their 
agents  authorized  by  writing;  but  the  memoranda  required 
by  the  fourth  and  seventeenth  sections  omit  this  latter 
requisite,  and  the  note  is  sufficient  if  signed  by  an  agent  duly 
authorized.    In  the  re-enactment  of  the  statute  by  the  states 

62;    Gartrell   v.    Stafford,   12   Neb.  sa  Justice  v.  Lang,  42  N.  Y.  493; 

552;  Louber  V.  Connit,  36  Wis.  176;  Ballou  v.  Sherwood,  32  Neb.  666; 

Estes  V.  Furlong,  59  111.  302;  Penni-  Ide  v.  Leiser,  10  Mont.  5;  Miller  v. 

man   v.   Hartshorn,   13    Mass.   87;  Cameron,  45  N.  J.  Eq.  95. 

Ivory  v.  Murphy,  36  Mo.  534;   Ide  34  Ross   v.    Parks,    93    Ala.    153; 

v.  Stanton,  15  Vt.  687;  McFarson's  Peevey  v.  Haughton,  72  Miss.  918. 

Appeal,  11  Pa.  St.  503;    Newby  v.  •''r,  ives   v.    Hazard,    4    R.    I.    14; 

Rogers,  40  Ind.  9;   Ives  v.  Hazard,  Peevey  v.  Haughton,  72  Miss.  918. 

4  R.  I.  14;  De  Cordova  v.  Smith,  30  Relating  to  leases,  etc. 
9  Tex.  129. 


12-3  THE  MEMORANDUM. 

the  laugiiage  of  the  original  has  in  the  main  been  closely  fol- 
lowed, and  the  authorization  of  the  agent  is  not  ordinarily 
required  to  be  in  writing  in  agreements  for  the  sale  of  lands.^''^ 
A  distinction  seems  to  have  been  made  in  this  particular 
between  agreements  by  which  an  interest  is  intended  to  be 
actually  passed  and  such  as  simply  contemplate  a  convey- 
ance of  such  interest  by  other  and  future  documents.  Hence, 
while  the  agreement  must  be  in  writing,  yet  if  executed  by  a 
I)ersou  under  and  in  pursuance  of  a  delegation  of  authority, 
such  authority  need  not  be  so  evidenced;  and  if  the  agent  has, 
in  fact,  been  authorized  to  sign  in  behalf  of  his  principal,  and 
does  so  sign,  the  j)rincipal  will  be  bound  by  the  act.^^ 

Nor  does  it  seem  necessary,  where  the  memorandum  is 
signed  by  an  agent,  that  the  name  of  the  principal  should 
appear.  It  is  well  settled  that  an  undisclosed  principal  may 
sue  or  be  sued  upon  a  contract  made  in  the  name  of  his 
agent,^^  and  it  has  been  held  that  the  provisions  of  the  statute 
are  complied  with  if  the  names  of  competent  contracting  par- 
ties appear  in  the  writing.  In  such,  event  the  weight  of  author- 
ity sustains  the  proposition  that  the  fact  of  agency  may  be 
shown  so  as  to  give  the  benefit  of  the  contract  on  the  one 
hand  and  charge  with  liability  on  the  other,  the  unnamed 
principal.**' 

§  91.  Signature  by  corporation.  It  is  a  well-established 
rule,  governing  the  admissibility  of  extrinsic  evidence  to  show 
who  are  the  parties  to  be  bound  by  a  written  instrument,  that 
a  party  will  not  be  permitted  to  show  by  oral  testimony  that 
his  written  agreement,  understandingly  entered  into,  was  not 
in  fact  to  be  binding  on  him.    So  it  has  been  generally  held, 

37  In  a  few  of  the  states  the  rule  Mon,    (Ky.)    184;    Curtis  v.   Blair, 

is  otherwise,  and  the  agent's  au-  26  Miss.  309;   Worrall  v.  Munn,  5 

thority  must  be  in  writing.     See  N.  Y.  229. 

Kozel  v.  Dearlove,  144  111.  23;  Ala-  39  Thayer  v.  Luce,  22  Ohio  St.  62; 

bama  etc.  R.  R.  Co.  v.  South  etc.  Dykers  v.  Townsend,  24  N.  Y.  57; 

R.    R.   Co.    84   Ala.   570;    Toan   v.  Hunter  v.  Giddings,  97  Mass.  41; 

Pline,  60  Mich.  385.  Tainter  v.  Lombard,  53  Me.  371. 

3s  Shaw  V.  Nudd,  8  Pick.  (Mass.)  4o  Kingsley  v.   Siebrecht.  92  Me. 

9;   Champlin  v.  Parrish,  11  Paige  23;  Eastern  R.  R.  Co.  v.  Benedict, 

(N.  Y.),  405;    Blood  v.  Hardy,  15  5    Gray    (Mass.),    561;    Powell    v. 

Me.  61;  Gowen  v.  KIous,  101  Mass.  Wade,  109  Ala.  95;  Waddill  v.  Se- 

454;  Malone  v.  McCullough,  15  Col.  bree,  88  Va.  1012;  Conway  v.  Swee- 

460;    Jackson  v.  Murray,  5  T.   B.  ney,  24  W.  Va.  643. 


THE    MEMORANDUM.  123 

where  individuals  have  assumed  obligations  over  their  own 
signatures,  that,  notwithstanding  the  addition  of  descriptive 
words  denoting  sonic  official  trust  or  corporate  dignity,  ])arol 
evidence  is  inadmissible  to  show  that  it  was  the  intention  to 
make  the  instrument  the  obligation  of  the  corporation  which 
they  represented,  and  not  that  of  the  parties  executing  it.^^ 
The  question  has  generally  arisen  in  the  case  of  promissory 
notes  and  obligations  of  like  character,  but  the  principle  is  not 
confined  in  its  application.  Where  a  corj)oration  is  one  of  the 
contracting  parties,  such  corporation,  and  not  its  managers, 
directors  or  trustees,  should  assume  the  obligations  of  the  con- 
tract; and  the  name  of  the  corporation  should  appear  as  one 
of  the  parties,  both  in  the  body  of  the  contract  and  in  the 
signature's  A  proper  and  safe  mode  of  executing  a  corporate 
contract  is  for  the  oflScers  or  agents  who  may  act  in  the  prem- 
ises to  subscnbe  the  name  of  the  corporation,  followed  by 
their  own  oflQcial  signatures,  with  apt  words  to  show  the  pro- 
curation.'^ 

§  92,  The  contracting  parties.  Inasmuch  as  no  contract 
can  be  made  without  parties  competent  to  contract,  so  it 
naturally  follows  that  no  contract  can  be  enforced  unless  the 
parties  are  named  or  designated;  and,  as  parol  evidence  is 
inadinissible  to  supply  the  terms  or  cure  the  defects  of  a  writ- 
ten agreement,  the  parties  form  the  first  inquiry  in  consider- 
ing a  memorandum  of  sale.  It  is  of  vital  importance,  there- 
fore, that  the  memorandum  should  show  who  are  the  parties, 
either  by  direct  designation  or  by  reference  sufficient  to  fully 
identify  them;''  for,  even  though  properly  signed  by  the  party 
to  be  charged,  if  it  nowhere  appears  who  the  opposite  party 
is,''^  or  if  though  a  party  be  named  he  is  not  with  certainty 

41  Nixon  V.  Downey,  49  Iowa,  ceived  to  vary  it.  Hypes  v.  GrifRn, 
166;    Baldwin  v.   Leonard,   39   Vt.    89  HI.  134. 

266.  ■»■'  Gillett  v.  Bank,  7  111.  App.  499 

42  Thus,  where  a  note  was  made  44  Nichols  v.  Johnson,  10  Conn 
by  parties  under  the  style  of  "We,  192;  Webster  v.  Ela,  5  N.  H.  540 
the  trustees  of  the  Methodist  Epis-  Brown  v.  Whipple,  58  N.  H.  229 
copal  Church  in  Lebanon,"  etc..  and  Farwell  v.  Lowther,  18  III.  252 
signed  and  sealed  by  the  several  Grafton  v.  Cummings,  99  U.  S.  100 
persons  composing  such  trustees.  Gowen  v.  Klous,  101  Mass.  449 
Jield,  that  the  note  was  individual,  Thornton  v.  Kelly,  11  R.  I.  498. 
and  parol  proof  could  not  be  re-       45  a    memorandum    which    does 


124  THE    MEMORANDUM. 

identilk'd,  the  wiitiug  will  be  msuUicient  to  support  an  action 
brouijlit  upon  it.^^  In  like  manner,  if  both  parties  are  named, 
yet  by  such  ambiguous  insertion  that  it  is  impossible  to  ascer- 
tain which  of  the  parties  is  vendor  and  which  vendee,  the 
instrument  will  be  without  effeet.^'^ 

§  93.  The  terms.  It  is  an  invariable  rule  that  every  agree- 
ment which  the  law  requires  to  be  in  writing  must  be  certain 
in  itself,  or  capable  of  being  made  so  by  reference  to  other 
writings."**  Form,  as  we  have  seen,  is  unimportant,  provided 
the  purport  of  the  undertaking  is  unmistakably  expressed; 
and  any  note  or  memorandum  which  furnishes  evidence  of  a 
complete  and  practicable  agreement  is  sufficient  to  meet  the 
requirements  of  the  statute.'*''  Parol  evidence  may  be  received 
to  explain  latent  ambiguities  or  to  apply  the  instrument  to  the 
subject-matter  i'^*'  but  the  essential  terms  can  only  be  ascer- 
tained from  the  writing  itself,  and  cannot  be  supplied  by 
parol.^^  Were  the  rule  otherwise  it  would  at  once  introduce 
all  the  mischiefs  which  the  statute  was  designed  to  prevent. 
It  is  necessary,  therefore,  that  all  the  terms  be  definitely  set- 
tled and  the  contract  concluded;  for  if  any  material  part  still 
rests  in  treaty,  or  remains  to  be  settled  by  further  negotiation, 

not  name  or  describe  the  vendor  is  Ann.  54;  Webster  v.  Ela,  5  N.  H. 

fatally  defective.     Mentz  v.  New-  540. 

witter,  122  N.  Y.  491.  49  Williams  v.   Morris,  95   U.   S. 

46  Osborn  v.  Phelps,  19  Conn.  63;  444;    Hurley   v.   Brown,   98   Mass. 

Sherburne  v.  Shaw,   1  N.   H.  157.  545. 

This  question   is  very  thoroughly  so  Barry  v.  Coombe,   1   Pet.    (U. 

and  learnedly  reviewed  in  Grafton  S.)  640;  Clark  v.  Burnham,  2  Story 

V.  Cummings,  99  U.  S.  100.  (C.   Ct.),   1;    Tice  v.  Freeman,   30 

4T  Bailey  v.  Ogden,  3  Johns.  (N.  Minn.  389;  Baldwin  v.  Shannon,  43 

Y.)    399.     But  in  case  of  sales  of  N.   J.    L.   596;    Lovejoy  v.   Lovett, 

chattels  the  late  tendency  of  courts  124  Mass.  270. 

is  to  permit  the  admission  of  parol  si  Dung  v.  Parker,  52  N.  Y.  494; 

evidence  as  an  aid  to  interpreta-  Baltzen  v.  Nicolay,  53  N.  Y.  467; 

tion.  Brown  v.  Whipple,  58  N.  H.   229; 

48  Abeel    v.    RadclifE,    13    Johns.  Ridgway  v.  Ingram,  50  Ind.  145; 

(N.  Y.)    279;    Nichols  v.  Johnson,  O'Donnell  v.  Leeman,  43  Me.  160; 

10  Conn.  192;  Boardman  v.  Spoon-  Morton  v.   Dean,  13  Met.    (Mass.) 

er,  13  Allen  (Mass.),  353;  James  v.  385;    Elliot  v.   Barrett,   144    Mass. 

Muir,  33  Mich.  223;    Tice  v.  Free-  256;    Kopp  v.  Reiter,  146  HI.  437. 

man,  30  Minn.  389;  Norris  v.  Blair,  An  action  was  brought  upon  the 

39   Ind.  90;    Buck  v.  Pickwell,  27  following,    which    was    signed    by 

Vt.  167;  Massey  v.  Hackett,  12  La.  both  parties:     "This  certifies  that 


THE   MEMORANDUM. 


ir. 


or  if  auy  of  llie  teruis  cauuot  be  ascertaiued  uuder  the  lule 
first  stated,  the  contract,  for  all  practical  purposes,  is  a  nullity 
and  in(ai)able  of  specific  enforcement.^^  If  the  instrument  is 
couched  in  language  so  vague  as  to  be  incapable  of  being 
understood  the  siuue  result  will  follow,  for  a  legal  promise 
must  mean  something  distinct  and  definite — something  capa- 
ble of  being  understood  and  of  being  carried  into  eilect. 

§  94.  The  consideration.  It  is  as  true  concerning  agree- 
ments in  respect  to  sales  of  land  as  of  other  commercial  trans- 
actions, that  no  binding  contract  can  exist  unless  based  upon 
a  sulficient  consideration.  Yet,  notwithstanding  the  consid- 
eration forms  an  essential  and  material  part  of  the  contract, 
it  is  not  necessary,  as  a  rule,  that  it  should  be  expressed  in 
the  memorandum ;  for  it  is  a  general  principle,  applicable  to 
all  instruments  or  agreements,  that  whatever  may  be  fairly 
implied  from  the  terms  or  language  emploj-ed  is,  in  judgment 
of  law,  contained  in  them.  Hence,  if  the  agreement  be  so 
stated  that  a  consideration  may  be  implied  or  inferred,  it  is  as 


I  have  sold"  to  the  plaintiff  "about 
five  acres  of  land,  more  or  less,  be- 
ing the  same  which  I  bought  of 
him,  in  consideration  of  the  same 
sum  which  I  paid  him  for  the 
same,  with  interest  from  the  time 
I  purchased  the  same  till  I  paid 
for  it  (supposed  about  six  months), 
with  the  expense  of  the  deed;  also 
the  taxes  for  one  year."  It  was 
held  that  this  was  a  valid  con- 
tract for  sale.  Atwood  v.  Cobb,  16 
Pick.  (Mass.)  227.  A  writing  ran 
thus:  "Augest  the  20  1850  i  do 
herby  agree  tht  Jonathan  Phillips 
shall  have  the  land  wieh  he  is 
posetion  of  now  for  the  labor  he 
don  for  me  overage,  and  this  shall 
be  his  wrecept  for  all  my  writes 
and  claim  against  the  land. 
(Signed)  David  Phillips."  Held, 
an  agreement  to  convey  sufficient 
for  equity  to  execute,  and  not 
within  the  statute.  Phillips  v. 
Swank,  120  Pa.  St.  76. 


■'-  McGuire  v.  Stevens,  42  Miss. 
724;  Telegraph  Co.  v.  Telegraph 
Co.  39  N.  J.  Eq.  160.  If  parties  ne- 
gotiating for  the  sale  of  a  tract  of 
land  agree  in  writing  upon  a  speci- 
fied price  per  acre,  but  that  the 
vendor  shall  take  in  payment  a 
house  and  lot  of  the  vendee,  at 
cash  value,  to  be  pronounced  by 
two  persons  (not  naming  them), 
or  the  money,  by  certain  instal- 
ments, in  case  the  vendee  shall 
prefer  paying  the  money,  and  after- 
ward (the  vendee  not  having 
elected  to  pay  money  for  the  land ) 
the  parties,  by  indorsement  on  the 
writing,  appoint  two  persons  to 
value  the  house  and  lot.  who  at- 
tempt to  do  so  but  differ  in  opin- 
ion, whereupon  they  verbally  agree 
to  make  another  appointment  at 
some  other  time  not  specified,  the 
contract  is  too  incomplete  to  be 
enforced  in  a  court  of  equity.  Ba- 
ker v.  Glass,  6  Munf.  (Va.)  212. 


12G  THE    MEMORANDUM. 

effectual  as  if  expressly  appearing  on  its  face.^^  Indeed,  a 
contract  to  convey  land  upon  payment  of  the  stipulated  price 
is  in  itself  evidence  of  a  mutual  agreement  of  the  vendor  to 
sell  and  the  vendee  to  purchase;  and  the  agreement  of  one 
party  forms  a  suflScient  consideration  for  that  of  the  other.'^^ 
Such  consideration  is  ample  for  all  purposes,  i)rovided  the 
promises  are  concurrent  and  obligatory  upon  both  parties  at 
the  same  time.^^  It  does  not  seem,  however,  that  it  is  essen- 
tial that  both  promises  should  be  obligatory  when  the  contract 
is  entered  into  in  order  to  render  the  mutual  ijromise  a  sufiQ- 
cient  consideration  and  it  is  no  objection  that  one  of  the  par- 
ties had  no  power  to  enforce  the  contract  at  the  time  it  was 
made.  It  is  sufficient  if  the  unbound  party  subsequently  ren- 
ders himself  chargeable  by  a  written  and  signed  offer  of  per- 
formance.^*' 

Nor  is  it  necessary  that  the  consideration  for  the  contract 
should  have  reference  to  money  or  even  to  i>ecuuiary  values; 
it  may  consist  of  anything  deemed  meritorious  or  valuable  by 
the  parties.^^  Thus,  marriage  is  a  sufficient  consideration  to 
support  a  conveyance  of  land,'^^  and  may  properly  form  the 
basis  of  an  agreement  concerning  the  same.  So,  also,  the 
adjustment  of  a  controversy  honestly  inaugurated,  in  respect 
to  property  interests,  is  a  sufficient  consideration  to  support 
an  agreement  concerning  the  subject-matter  of  such  contro- 
versy.^^    Considerations  which  are  given  for  compromising 

53  Adkins  V.  Watson,  12  Tex.  199;  ss  Lester  v.  Jewett,  12  Barb.  (N. 

Hargraves    v.    Cook,    15    Ga.    321;  Y.)    502. 

Rogers  v.  Kneeland,  10  Wend.   (N.  so  As    when   the   unbound   party 

Y.)    252;   Douglass  v.  Rowland,  24  brings  an  action  for  performance 

Wend.  (N.  Y.)   35;  Goward  v.  Wa-  against      the      party      originally, 

ters,   98   Mass.   596;    Sage   v.   Wil-  charged.     See  Ives  v.  Hazard,  4  R. 

cox,   6   Conn.   81;    Reed   v.   Evans,  I.  14;   Evans  v.  Williamson,  79  N. 

17    Ohio,    128.     This   has   been   so  C.    86;    Vassault    v.    Edwards,    43 

held  even  where  the  statute   pro-  Cal.  458;   Ivory  v.  Murphy,  36  Mo. 

vides    for    some    "note    or    memo-  534;    Roberts  v.   Griswold,   35  Vt. 

randum,  expressing  the  considera-  496. 

tion."     See  Eno  v.  Woodworth,  4  57  Charleston   etc.    R.   R.   Co.   v. 

N.  Y.  249.  Leech,  33  S.  C.  175. 


T,i  Ewins  V.  Gordon,  49  N.  H.  444 
Vassault  v.  Edwards,  43  Cal.  458 
Murphy    v.    Rooney,    45    Cal.    78 


58  Otis  v.  Spencer,  102  111.  622. 

59  As   where   a  testator   devised 
the  larger  portion  of  his  estate  to 


Pool  v.  Docker,  92  111.  501.  a  part  of  his  children,  leaving  the 


THE    MEMORANDUM.  127 

doubtful  i-ijrhts  and  settling  boundaries  are  held  to  be  good;«o 
and  <;eii('ni]ly  a  pn-judice  to  the  party  to  whom  a  promise  is 
made,  as  well  as  a  beiielit  to  the  party  making  it,  is  a  sutticient 
consideration  to  render  the  promise  obligatory ."^ 

It  is  almost  the  universal  praetic-e,  however,  in  all  formally 
drawn  agreements,  to  insert  a  nominal  consideration,  usually 
the  sum  of  one  dollar.  As  a  matter  of  fact,  this  sum  is  rarely 
ever  paid,  but  the  acknowledgment  of  its  receipt  amounts  to 
an  estoppel;  and  a  valuable  consideration,  however  small  or 
nominal,  if  given  or  stipulated  for  in  good  faith,  is,  in  the 
absence  of  fraud,  sufficient  to  sustain  a  promise  and  take  the 
case  out  of  the  ojteration  of  the  statute.^^ 

§  95.  The  purchase  price.  It  must  be  understood,  how- 
ever, that  the  remarks  of  the  foregoing  section  have  reference 
only  to  the  consideration  or  motive  of  the  contract  and  not  to 
the  purchase  price  to  be  paid  for  the  land;  for  a  price,  either 
fixed  by  the  parties,*53  or  capable  of  being  ascertained  by  com- 
putation from  some  specific  facts,^'*  or  by  the  appraisal  of 
some  person  referred  to  in  the  memorandum,^-'''  is  an  essential 
element  of  every  contract  of  sale.^^^  A  memorandum  which, 
while  professing  to  give  the  right  to  purchase,  yet  names  no 
price  or  teiins,  is  too  imperfect  to  be  treated  as  a  valid  con- 
others  but  a  small  portion,  and  the  c4  Atwood  v.  Cobb,  16  Pick, 
latter  filed  a  bill  in  chancery  to  set  (Mass.)  227.  An  agreement  to  sell 
aside  the  will  in  order  to  com-  land  for  "about"  $700,  and  a  sum 
pel  an  equal  distribution  of  the  sufficient  to  reimburse  the  vendor 
property,  an  agreement  between  all  for  expenses  incurred  in  a  suit 
the  heirs,  pending  the  litigation,  then  pending  concerning  said  land, 
for  an  equal  distribution  of  the  held  sufficiently  definite  as  to  con- 
estate,  and  in  adjustment  of  the  sideration  to  be  specifically  en- 
controversy  in  respect  to  the  will,  forced.  Wilbourn  v.  Bishop,  62 
was  held  to  be  based  upon  a  suffl-    Miss.  341. 

cient  consideration.    Pool  v.  Dock-        or.  Brown    v.    Bellows,    4    Pick, 
er,  92  111.  501.  (Mass.)  178. 

«o  Zane  v.  Zane,  6  Munf.  (Va.)  go  Kleinpeter  v.  Hannigan,  21  La. 
406;  Moore  v.  Fitzwater,  2  Rand.  Ann.  196;  Eppich  v.  Clifford,  6 
(Va.)    442.  Col.  493;   Spangler  v.  Danforth,  65 

«i  Overstreet  v.  Phillips,  1  Litt.  111.  152;  Grace  v.  Dennison,  114 
(Ky.)  120;  Charleston  etc.  R.  R.  Mass.  16;  Huff  v.  Shepard,  58  Mo. 
Co.  v.  Leech,  33  S.  C.  175.  242;   Phelps  v.  Stillings,  60  N.  H. 

02  Lawrence  v.  McCalmont,  2  505;  Grafton  v.  Cummings,  99  U. 
How.  (U.  S.)  426.  S.    100.      Indeed,    this    necessarily 

«3  Sales  V.  Hickman,  20  Pa.  St.  follows  from  the  rule  providing 
180.  that  every  agreement  which  is  re- 


128 


THE    MEMORANDUM. 


tract  ;^'  and  iinloss  some  part  of  the  purchase  money  has  been 
paid  and  the  purchaser  let  into  possession,^^  i\^q  contract 
would  practically  be  void  for  all  purposes.^'^  If  it  appears 
from  the  agreement  that  the  price  has  already  been  jiaid,  the 
reason  of  the  rule  does  not  apply,  and  no  price  need  be 
stated.'O 

An  exact  statement  of  price  in  numerals  expressive  of  the 
denominations  of  money  is  not  necessary,  but  some  unequiv- 
ocal and  positive  method  of  ascertaining  the  price  must  be 
agreed  upon  where  the  sale  purports  to  be  made  for  a 
pecuniary  consideration^^  It  is  not  necessary,  however,  that 
the  price  should  be  paid  in  money;  it  may  consist  of  anything 
deemed  by  the  parties  to  be  of  valueJ^ 

§  96.  Description  of  the  property.  It  is  a  familiar  rule  in 
this  branch  of  the  law  that  a  contract  which  equity  will 
specifically  enforce  must  be  certain  in  its  tenns,  and  the  cer- 
tainty required  has  reference  both  to  the  description  of  the 


quired  to  be  in  writing  by  the 
statute  of  frauds  must  be  certain 
in  itself,  or  capable  of  being  made 
so  by  reference  to  something  else 
whereby  the  terms  can  be  ascer- 
tained. Abeel  v.  Radcliff,  13  Johns. 
(N.  Y.)   297. 

67  Sales  V.  Hickman,  20  Pa.  St. 
180;  Williams  v.  Morris,  95  U.  S. 
444;  Parkhurst  v.  Van  Courtland,  1 
Johns.  Ch.  (N.  Y.)  273;  Phelps  v. 
Stillings,  60  N.  H.  505;  Phillips  v. 
Adams,  70  Ala.  373. 

6s  Temple  v.  Johnson,  71  111.  13. 
Such  a  contract  would  be  void, 
even  though  the  purchaser  had 
been  placed  in  possession,  where 
no  part  of  the  purchase  money  had 
been  paid.  Phillips  v.  Adams,  70 
Ala.  373. 

69  Carr  v.  Building  Co.  19  N.  J. 
Eq.  424.  But  see  Ellis  v.  Bray,  79 
Mo.  227.  A  writing  in  form:  "Yates 
Center,  Ks.,  June  13,  1883.  Re- 
ceived of  J.  B.  Fry  $50,  for  part 
payment  of  purchase  money  for 
Sec.  1,  T.  25,  R.  14.  Woodson  coun- 


ty, Ks.  (Signed)  T.  M.  Eads, 
agent  for  Alex.  Piatt,"  held  too  in- 
definite for  a  memorandum  under 
the  statute  of  frauds.  Fry  v. 
Piatt,  32  Kan.  62. 

'0  Holman  v.  Bank  of  Norfolk, 
12  Ala.  369. 

71  Thus,  a  contract  for  the  sale 
of  a  village  lot  at  whatever  price 
the  first  lot  sold  in  the  vicinity 
should  realize  was  held  not  to  be 
void  for  uncertainty,  an  adjacent 
lot  having  been  sold  for  $125  be- 
fore the  action  was  commenced  on 
said  contract.  Cunningham  v. 
Brown,  44  Wis.  72.  The  defendant 
agreed  that  the  plaintiff  should 
"have  the  refusal  of  a  farm  bought 
by  me  for  the  sum  of  $1,940,  upon 
his  complying  with  certain  condi- 
tions, which  conditions  he  has 
complied  with."  This  was  held  to 
be  a  valid  contract,  and  that  it  ex- 
pressed the  price  for  the  land.  Bird 
V.  Richardson,  8  Pick.  (Mass.)  252. 

72  Charleston  etc.  R.  R.  Co.  v. 
Leech,  33  S.  C.  175. 


THE    MEMORANDUM.  129 

property  aud  the  estate  to  be  conveyed.  Uncertainty  as  to 
either,  not  cai)able  of  bein^^  removed  by  extrinsic  evidence, 
will  invalidate  the  contract.'''  IJiit  while  an  une(iuivocal 
description,  ^iviii;;  location,  area  and  l>ouii(laries,  is  a  literal 
and  jtcrfccl  observance  of  the  rule,  a  less  jiarticular  stalenient 
will  usually  sullice,  provided  it  contains  within  itself  the 
proper  means  of  identification,'^*  as  by  reference  to  extrinsic 
facts  or  other  instruments'^''  by  means  of  which  the  land  can 
be  ascertained  with  sudicient  certainty.'^''  ^^'here  the  descrip- 
tion does  not  identify  the  land,  nor  state  directly  where  it  is, 
nor  indicate  any  extrinsic  fact  from  which  its  locality  can  be 
ascertained  and  fixed,  specific  performance  cannot  be  decreed, 
nor  can  parol  evidence  be  received  to  fix  the  locality .'^'^ 

§  97.  The  interest  to  be  conveyed.  The  memorandum 
required  by  the  statute  of  frauds  to  maintain  an  action  on  a 
contract  for  the  sale  of  any  interest  in  land  must  clearly  show, 
either  by  itself  or  taken  in  connection  with  some  other  writing 
contemporaneous  with  or  referred  to  in  the  memorandum, 
what  that  interest  is.'^^  The  estate,  as  well  as  the  land,  must 
be  shown,  unless  by  necessary  legal  implication  the  interest 
is  the  entire  right  of  property  in  the  bargained  premises,  A 
memorandum  which  does  not  show  whether  it  relates  to  an 
estate  in  fee,  for  life  or  for  j'ears  has,  even  under  recent 
decisions,  been  held  insufficient  ;'^'''  but  as  the  statute  in  most 
of  the  states  now  provides  that  in  the  sale  of  land,  where  no 

"Whelan  v.  Sullivan,  102  Mass.  Craig,  21  Ark.  533;  Taylor  v.  Ash- 

204;  Peters  v.  Phillips,  19  Tex.  74;  ley,    15    Tex.    50;    Ridgway    v.    In- 

Tice   V.    Freeman,    30    Minn.   389;  gram,  50  Ind.  145;   Jordan  v.  Fay, 

Ridgway  v.   Ingram,  50   Ind,  145;  40   Me.    130;    Ferris  v.   Irving,   28 

Cortelyon's  Appeal,  102  Pa.  St.  576,  Cal.  645. 

74  White  V,  Hermann,  51  111.  243;  77  Ryan  v,  Davis,  5  Mont.  505; 
Haven  v.  Richardson,  5  N.  H.  113;  Bishop  v.  Fletcher,  48  Mich.  555; 
Brown  v.  Bellows,  4  Pick.  (Mass.)  Tice  v.  Freeman,  30  Minn,  389; 
179;  Kay  V,  Curd,  6  B,  Mon.  (Ky.)  Meyer  v,  Mitchell,  75  Ala.  475; 
100,  Jones  v.  Carver,  59  Tex.  293;  Sher- 

75  Washburn  v,  Fletcher,  42  Wis,  er  v.  Trowbridge,  135  Mass.  500. 
152;  Tallman  v.  Franklin.  14  N.  Y.  7s  parwell    v.    Mather,    10    Allen 
589;  Norris  v.  Blair,  39  Ind.  70.  (Mass.),  322, 

70  Ryers    v.    Wheeler,    22   Wend.  7a  Farwell   v.    Mather,    10    Allen 

(N.  Y.)   148;   Worthington  v.  Hy-  (Mass.),  322;  and  see  Abeel  v.  Rad- 

lyer,  4   Mass.   196;    Warrington  v.  cliff,  13  Johns.    (N.  Y.)    297;    Mor- 

Ayres,   40   N.  Y,   357;    McGuire  v,  ton  v.  Dean,  13  Mete.  (Mass.)  385. 
Stevens,  42  Miss,  724;  Johnson  v. 
9 


130  THE    MEMORANDUM. 

specific  estate  is  mentioned,  the  interest  conveyed  shall  be 
taken  to  be  the  fee,  this  branch  of  the  question  has  lost  mucb 
of  its  importance.  It  is  customary  in  stipulating  for  the  con- 
veyance that  the  land  shall  be  conveyed  by  good  and  sufficient 
deed  in  fee-simple;  but  the  neglect  to  add  this  description  of 
the  character  of  the  estate  would  not  probably  affect  the  con- 
tract where  the  statutory  provision  above  referred  to  is  in 
force,  and  the  intention  of  the  parties  was  that  the  purchaser 
should  take  the  fee. 

§  98.  Time.  Although  it  is  a  fundamental  principle  that 
time  is  a  primary  and  indispensable  element  in  all  contracts, 
and  at  law  is  a  controlling  incident,  yet,  in  contemplation  of 
equity,  in  contracts  relating  to  land,  it  is  not  considered  as 
necessarily  of  their  essence.^o  It  may  be  made  essential  by  an 
express  stipulation  of  the  parties,^i  or  it  may  be  deemed  so 
from  the  nature  of  the  property  or  the  purpose  for  which  it 
was  purchased,s2  or  from  other  circumstances  surrounding 
the  case  f^  but,  as  a  general  proposition,  where  there  is  noth- 
ing in  the  contract  attaching  any  particular  importance  to  the 
-time  of  performance,  time  will  not  usually  be  considered 
material.^* 

Where  parties  intend  to  make  time  of  the  essence  of  the 
contract,  to  have  that  effect  in  equity  the  stipulation  must  be 
clearly  and  unequivocally  expressed.  The  intention  must  be 
unmistakably  apparent  from  the  language  employed;  and 
when  such  language  leaves  no  room  for  doubt,  and  the  con- 
tract is  one  which  the  parties  are  competent  to  make,  it  will 
take  effect  according  to  its  terms,  and  be  binding  in  equity  as 
well  as  at  law.^^  To  accomplish  this,  fonn  is  not  material 
provided  substance  is  found,  and  usually  any  language  will 

soMilnor  v.  Willard,  34  111.  38;  Furlong  v.   Barnes,   8   R.    I.    226; 

King  V.  Ruckman,  20  N.  J.  Eq.  316;  Hutcheson  v.  McNutt,  1  Ohio,  18. 

Prince  v.   GrifSn,    27   Iowa,  514.  84  Murphy  v.    Lockwood,   21    111. 

81  Mason  v.  Payne,  47  Mo.  517;  611;  Glover  v.  Fisher,  11  111.  666; 
Kirby  v.  Harrison,  2  Ohio  St.  326;  Steele  v.  Branch,  40  Cal.  3. 
Knott  V.  Stephens,  5  Oreg.  235;  ss  Scott  v.  Fields,  7  Ohio,  424; 
Reynolds  v.  R.  R.  Co.  11  Neb.  186;  Phelps  v.  R.  R.  Co.  63  III.  468; 
Barnard  v.  Lee,  97  Mass.  92;  Kim-  Prince  v.  Griffin,  27  Iowa,  514;  Grey 
ball  v.  Tooke,  70  111.  553.  v.  Tubbs,  43   Cal.  359;    Morgan  v. 

82  Jones  V.  Robbins,  29  Me.  351.  Bergen,  3  Neb.  209;  Snider  v.  Lehn- 

83  Hoyt  V.  Tuxbury,  70  111.  331 ;  herr,  5  Oreg.  385. 
Grigg  V.  Landis,  21  N.  J.  Eq.  494; 


THE    MEMORANDUM.  131 

be  sufficient  wliich  clcaily  jnov  ides  that  Ilic  contratl  shall 
be  void  in  case  of  the  non-fulfillment  of  the  i)reHcribed  condi- 
tions.^" Merely  naniinj;  the  time  of  i)erfonnance,  even  witli 
the  stipulation  last  stated,  will  not  impart  essential  character 
where  it  clearly  appears  that  such  stipulation  was  simply 
formal,*'^  and  such  contract  will  be  held  to  mean  only  that 
completion  shall  be  nuule  within  a  reasonable  time  and  sub- 
stantially according  to  the  agreement,  regard  being  had  to  all 
the  circumstances;^'^  but  if  the  language  employed  expressly 
states  that  time  is  of  the  essence,'^''  or  if  it  otherwise  ajtpear 
that  both  parties  intended  to  fix  a  time  for  completing  the 
contract  and  this  was  to  be  literally  complied  with,  neither 
party,  in  the  absence  of  other  circumstances,  can  obtain  relief 
from  the  consequences  of  default. 

As  constituting  one  of  the  terms  the  time  of  perfonnance 
should  be  stated;  and  as  the  rule  is  imperative  that  a  con- 
tract cannot  rest  partly  in  writing  and  partly  in  parol,  it 
necessarily  follows  that  parol  evidence  is  not  admissible  to  fix 
the  time  when  a  written  contract  is  to  be  performed.  Hence, 
there  are  numerous  cases  which  hold  that  specific  enforce- 
ment cannot  be  decreed  when  the  contract  fixes  no  time  for 
performance;'*"  as  where  the  memorandum  states  the  purchase 
price  but  omits  the  time  of  payment.^^  It  might,  it  would 
seem,  be  urged  that,  reasoning  by  analogy,  payment  should  be 
made  within  a  reasonable  time;  yet  this,  it  is  contended, 
would  only  be  to  introduce  the  forbidden  element  of  uncer- 
tainty; for  no  rule  has  ever  been  devised  to  fix  the  limits  of 
a  reasonable  time,  nor  is  there  any  known  or  recognized  cus- 
tom to  fix  what  is  thus  left  undetermined.  It  is  believed, 
however,  that  this  is  a  rather  extreme  view;  for  ordinarily, 
where  no  time  is  expressed  in  a  contract  for  the  piMiormance 
of  its  tenns,  the  law  will  imply  that  it  shall  be  within  a  rea- 
sonable tinie,^-  the  circumstances  of  each  particular  case  fur- 
so  Kimball  v.  Tooke,  70  111.  553.       636;    Gates    v.   Gamble.    53   Mich, 

87  Barnard  v.  Lee,  97  Mass.  92;     346;    Wright  v.    Weeks.    25    N.   Y. 
Jones  V.  Robbins.  29  Me.  351.  153;  Johnson  v.  Kellogg,  7  Heisk. 

88  Jones  V.  Robbins,  29  Me.  351;     (Tenn.)    262. 

Waterman  v.   Dutton,  6   Wis.  265.        oi  Gault   v.    Stormont.    51    Mich. 

sn  Missouri,    etc.    R.    R.    Co.    v.  636. 
Brickley,    21    Kan.    275;    Stow    v.        i'- Driver    v.    Ford,    90    111.    595; 

Russell.  36  111.  18.  Hamilton    v.    Scully.    118   111.   192; 

,»o(jault   V.    Stormont,    51    Mich.  Waterman  v.  Dutton,  6  Wis.  265. 


132  THE    MEMORANDUM. 

nisliiug  the  basis  for  deteraiining  what  is  a  reasonable  time.''^ 
This  doctrine  finds  its  most  numerous  illustrations  in  contracts 
connected  with  cliattels,  but  it  seems  it  is  equally  applicable 
to  contracts  for  the  sale  and  purchase  of  land.-'^ 

§  99.  Receipts.  As  previously  stated,  it  is  immaterial 
what  form  the  writing  which  constitutes  the  agreement  may 
assume,  provided  it  contains  the  essential  elements  of  a  valid 
contract  so  as  to  satisfy  the  requirements  of  the  statute  of 
frauds.  Hence,  a  receipt  for  purchase  money,  specifying  the 
terms  of  the  agreement  and  signed  by  the  vendor,  will  create 
a  binding  contract  which  may  be  enforced  in  equity  against 
him.''5  And  generally,  receipts,  letters  and  other  matters  in 
writing,  though  neither  are  of  themselves  sufficient,  may, 
when  taken  together,  constitute  such  a  memorandum  as  will 
satisfy  the  statute.®^ 

§  100.  letters.  No  more  common  method  exists  for  the 
negotiation  of  sales  of  real  estate  tlian  through  the  media  of 
epistolary  correspondence,  and  numerous  examples  are 
afTorded  in  the  reported  cases  of  binding  and  valid  contracts 
effected  in  this  manner.  Where  there  is  a  distinct  offer  of 
sale,  specifying  terms  and  property,  and  the  offer  is  at  once 
closed  by  an  unqualified  acceptance,  the  contract  is  complete 
and  capable  of  legal  enforcement.'^'^  Such  a  contract,  so  made, 

93  Within  a  month,  there  being  12,  1880.  Received  of  A.  B.  twenty 
no  special  circumstances.  Lowe  v.  dollars  as  forfeit  to  guaranty  the 
Harwood,  139  Mass.  133.  payment  of  the  balance  of  the  first 

94  See  Lowe  v.  Harwood,  139  instalment  of  interest  within  30 
Mass.  133.  days  from  date  with  interest  at  10 

95  Raubitschek  v.  Blank,  80  N.  Y.  per  cent,  per  annum  on  E.  V2  of  S. 
478.  The  following  memorandum  W.  %,  S.  29,  T.  9,  R.  9,  E.,  at  $9 
in  writing,  viz.:  "Denver,  Dec.  17,  per  acre,  10  years'  credit.  C.  D.," — 
1880.  Received  of  E.  the  sum  of  held  sufficient  under  the  statute  of 
twenty-five  dollars,  part  payment  frauds.  McWilliams  v.  Lawless,  15 
for  lots  1,  2,  3,  in  block  28,  C.  &  E.  Neb.  131. 

addition  to  Denver.  Consideration,  »«  Peay  v.  Seigler,  48  S.  C.  496; 
$2,000.  (Signed)  M.  C,  by  G.  &  Lee  v.  Butler,  167  Mass.  426. 
Co.,  Agents," — is  sufficient  to  take  «"  Matteson  v.  Scofield,  27  Wis. 
the  contract  out  of  the  statute  of  671;  Knight  v.  Cooley,  34  Iowa, 
frauds,  and  the  contract  imported  218;  Thames  L.  &  T.  Co.  v.  Be- 
by  said  memorandum  will  be  spe-  ville,  100  Ind.  309;  Otis  v.  Payne, 
cifically  enforced.  Eppich  v.  Clif-  86  Tenn.  663;  Wills  v.  Ross.  77  Ind. 
ford,  6  Colo.  493.  A  memorandum  1;  Eads  v.  Carondelet,  42  Mo.  113. 
inform:    "$20.  Lincoln,  Neb.,  May 


THE    MEMORANDUM.  133 

embodies  all  the  essential  features  necessary  to  ^ive  validity, 
and  in  its  operation  would  diller  from  none  made  by  personal 
coniuiuuication  or  couched  in  more  formal  lanj^'uage/'** 

It  is  essential,  however,  that  all  the  terms  shall  be  capable 
of  ascertainment  from  the  correspondence  to  enable  a  court 
to  enforce  specific  performance  as  a  whole.  Hence,  if  there 
are  essential  elements  alTectinj,^  the  rij^hts  of  the  parties 
which  are  not  implied  by  or  to  be  inferred  from  what  they 
have  agreed  uj)on,  but  left  open  for  future  consideration  and 
adjustment,  the  contract  as  a  whole  lacks  completeness,  and 
no  action  can  arise  upon  it.^**  Again,  the  intention  of  a  pres- 
ent contract  should  appear;  for  while  men  may  and  do  con- 
tract by  letter,  and  such  contracts  are  always  upheld  and 
enforced,  it  is,  nevertheless,  a  method  that  courts  are  ever 
inclined  to  scrutinize  closely  and  construe  liberally.  In  many 
instances  such  letters  are  intended  merely  as  preliminary 
negotiation.  Proposals  are  made  and  views  exchanged;  prices 
are  discussed,  and  suggestions  offered  relative  to  the  property 
under  consideration.  From  all  this  a  strict  construction 
might  possibly  deduce  a  contract  within  the  meaning  of  the 
statute  of  frauds,  and  yet  such  might  not  have  been  the  actual 
intent  of  the  parties.  The  question,  therefore,  in  such  cases 
always  is:  Did  the  parties  mean  to  contract  by  their  corre- 
spondence, or  were  they  only  settling  the  terms  of  an  agree- 
ment into  which  they  formally  proposed  to  enter  after  all  its 
particulars  had  been  adjusted,  and  by  which  alone  they 
intended  to  be  bound  ?i  If  upon  this  view  it  apjK'ars  that  the 
letters  w^ere  merely  the  basis  for  a  contract,  or  if  it  is  reason- 
ably doubtful  whether  what  passed  was  only  treaty,  no  action 


08  Hickey  v.  Dole,  66  N.  H.  336;  termine    their    legal    effect,    and 

Urann   v.   Coates,   109   Mass.   581;  whether    they    constituted    a    con- 

Kingsbury  v.  Burnside,  58  111.  310;  tract,  and  if  so  to  give  construc- 

Austin   V.    Davis,    128    Ind.   472.  tion  to  the  contract;  and  it  is  er- 

00  Brown  v.  R.  R.  Co.  44  N.  Y.  ror  to  submit  the  construction  of 

79;   Gates  v.  Nelles,  62  Mich.  444.  such  contract  to  the  jury.    Ranney 

Where  a  contract  is  made  between  v.  Higby,  5  Wis.  62. 
parties  residing  at  a  distance  from        i  Lyman   v.   Robinson,   14   Allen 

each  other  by  means  of  letters  pass-  (Mass.),  242;  Carter  v.  Shorter,  57 

ing  between  them,  it  is  the  duty  of  Ala.    253;     Knight    v.    Cooley.    34 

the  court,  the  letters  and  the  acts  Iowa,  218;  Moulton  v.  Kershaw,  17 

of  the  parties  being  proven,  to  de-  Rep.  606. 


134  THE    MEMORANDUM. 

can  be  maintained  on  them.^  This  is  particularly  true  if  the 
l)arty  attempting  to  enforce  the  contract  has  done  nothing 
under  it.^ 

But  where  the  essential  requisites  appear,  and  no  doubt  can 
exist  as  to  intention,  the  contract  becomes  complete  when  the 
answer  containing  the  acceptance  of  a  distinct  proposition  is 
dispatched,  whether  by  mail  or  otherwise;^  provided,  how- 
ever, that  it  be  done  with  due  diligence  after  the  receipt  of  the 
communication  containing  the  proposal,  and  before  any  inti- 
mation is  received  that  the  oti'er  is  withdrawn  ;'*  and  pro- 
vided, further,  that  the  party  making  the  offer  was  alive 
when  such  offer  was  accepted.*'  This  is  the  rule  recognized  by 
all  the  leading  authorities'''  and  adopted  by  the  best  writers.^ 
Nor  does  this  rule  at  all  contravene  the  primary  rule  that,  to 
constitute  a  valid  contract,  the  minds  of  the  parties  must 
meet  and  their  joint  assent  be  manifest;  for  it  is  not  neces- 
sary that  their  wills  should  concur  at  the  same  moment  if 
the  will  of  the  party  receiving  the  proposition  is  declared 
before  the  will  of  the  party  making  it  is  revoked.  The  con- 
sent of  one  party  may  properly  precede  the  other,  provided 
the  will  of  the  party  offering  continues  down  to  the  time  of 
acceptance;  and,  unless  the  contrary  appears,  the  presump- 
tion is  that  this  will  does  continue,  upon  the  principle  that, 
wherever  the  existence  of  a  particular  subject-matter  or  rela- 

2  Brrick  v.  Monette,  75  Ala.  75;  7th,  before  receiving  any  notice  of 
Gates  V.  Nelles,  62  Mich.  444.  K.'s    withdrawal    of    his    offer,    C. 

3  Carr  v.  Duval,  14  Pet.  (U.  S.)  wrote,  accepting  it  and  arranging 
77;  McDonald  v.  Bewicli,  51  Mich,  for  closing  the  transaction  at  once. 
79.  Held,    that   there    was   a   contract 

4  Trevor  v.  Wood,  36  N.  Y.  307;  binding  on  K.  Kempner  v.  Cohn, 
Washburn  v.  Fletcher,  42  Wis.  152.  47  Kv'k.  519. 

5K.  and  C.  had  lived  sixty  miles  e  Mactier  v.  Firth,  6  Wend.   (N. 

apart  in  cities  between  which  was  Y.)  103;  Moore  v.  Pierson,  6  Iowa, 

a  mail  communication  twice  a  day.  279. 

On  January  28th  C.   wrote  to  K.,  7  Wheat   v.    Cross,    31    Md.    99; 

asking  terms  on  which  K.  would  Hutcheson    v.    Blakeman,    3    Met. 

sell  a  parcel  of  land.     K.  replied  (Ky.)     80;    Ferrier    v.    Stover,    63 

January    30th,    stating   his    terms.  Iowa,    484;    Stone   v.    Harmon,    31 

K.'s  agent  did  not  deliver  the  letter  Minn.  512;   Trevor  v.  Wood,  36  N. 

to  C.  until  February  2d.    C.  at  once  Y.  307;  Averill  v.  Hedge,  12  Conn, 

had  the  title  examined,  and  parted  436;  Levy  v.  Cohn,  4  Ga.  1. 

with    securities   to   get   money   to  »  2  Kent's  Com.  477;  Story,  Sales 

pay   for  the  land.     On   February  (4th  ed.),  §  129. 


THE    MEMORANDUM. 


135 


tioii  has  once  been  proved,  its  coiitiiiuaiicc  is  prcsiiiiKMl  iiniil 
the  contrary  is  shown  or  until  a  dillerent  presumption  is 
atTorded  by  the  subjet-t matter.'' 

Nor  will  the  fact  that  the  parties  each  make  mention  of  cir- 
cumstances remotely  connected  with  the  sale,  which  are  to 
be  left  for  future  consideration,  affect  the  contract  or  render 
it  any  the  less  complete,  provided  such  matters  do  not  partake 
of  its  essential  terms ;•"  but  if  the  reply  to  an  offer  restates 
the  terms  thereof  with  some  variations,  however  slight,  it 
cannot  l)e  regarded  as  a  completion  of  the  contract."  The 
proposition  must  be  accepted  upon  the  terms  stated,  and  until 
unqualifiedly  accepted  it  remains  a  mere  offer ;^-  on  the  other 


"Moore  v.  Pierson,  6  Iowa,  279; 
Mactier  v.  Firth,  G  Wend.  (N.  Y.) 
103.  Letters  properly  directed  and 
mailed  are  presumed  to  have  been 
received;  and  the  same  is  true  of 
telegrams  given  to  a  telegraph  com- 
pany for  transmission  if  properly 
addressed,  and  the  presumption  be- 
comes conclusive  when  not  denied. 
Oregon  S.  S.  Co.  v.  Otis,  100  N.  Y. 
446. 

10  Moore  v.  Pierson,  6  Iowa,  279; 
Fitzhugh  V.Jones,  6  Munf.  (Va.)  83. 
As  where  in  the  letter  containing 
the  offer  there  is  some  mention  of 
debts  to  be  paid,  of  which  the 
writer  says  he  will  speak  in  an- 
other letter,  the  payment  of  these 
debts  not  being  connected  with  the 
price  to  be  paid  for  the  land  or 
the  terms  of  payment;  or  where 
the  letter  of  acceptance  says  the 
acceptor  expects  to  receive  some 
personal  property  about  which 
there  is  some  dispute  with  the 
land,  yet  gives  no  intimation  of 
waiving  or  delaying,  for  this  rea- 
son, his  acceptance  of  terms  of 
trade  proposed.  Moore  v.  Pierson, 
6  Iowa,  279.  So,  too,  where  a  per- 
son disposed  to  purchase  a  tract 
of  land  wrote  to  the  other  inquir- 
ing whether  it  was  for  sale,  and 
what  were  his  terms  by  the  acre. 


stating  also  the  payments  it  would 
be  convenient  for  him  to  make, 
one  of  which  was  to  pay  $1,000 
immediately.  The  answer  to  this 
letter  stated  the  price  the  owner 
was  willing  to  take,  but  that  he 
wished  the  purchaser  would  take 
upon  himself  the  responsibility  of 
establishing  the  lines.  He  also  ac- 
ceded to  the  offered  terms  of  pay- 
ment, and  required  the  purchaser's 
answer.  The  purchaser's  reply 
stated  that  he  would  take  the  land 
on  the  terms  proposed,  and  would 
have  the  lines  ascertained,  though 
it  went  on  to  express  a  wish  that 
the  owner's  agent  should  attend  to 
the  settlement  of  part  of  the  bound- 
aries, saying  nothing,  however,  of 
waiving  his  acceptance  of  the 
terms  he  had  proposed.  This  the 
court  held  was  a  complete  contract 
for  the  sale  of  the  land.  Fitzhugh 
V.  Jones,  6  Munf.  (Va.)   83. 

11  An  answer  to  an  offer  to  sell 
land,  which  fixes  a  different  place 
for  the  delivery  of  the  deed  and 
payment  of  the  purchase  money,  is 
not  an  acceptance.  Langellier  v. 
Schafer,  36  Minn.  361;  Egger  v. 
Nesbitt,  122  Mo.  667;  Northwestern 
Iron  Co.  V.  Meade,  21  Wis.  474. 

i^Maclay  v.  Harvey,  90  111.  525; 
Bruner   v.   Wheatou,   46   Mo.   363; 


136  THE    MEMORANDUM. 

hand,  if  an  answer  to  an  offer  by  letter  proposes  modifica- 
tions, the  party  making  the  offer  must  state  his  acceptance 
of  the  modifications  if  he  desires  to  hold  the  writer  of  the 
answer.^  3 

It  is  further  to  be  observed  that,  where  an  offer  is  made  by 
letter,  askiuj^'  for,  or  where  the  sender,  from  the  nature  of  the 
business,  has  a  right  to  expect,  an  answer  by  return  mail, 
the  offer  can  only  endure  for  a  limited  time.  The  making  of 
it,  under  such  circumstances,  is  accompanied  by  an  imjjlied 
stipulation  that  the  answer  shall  be  by  return  mail;  and,  if 
that  implied  stipulation  is  not  satisfied,  the  person  making  the 
offer  is  released  from  it.^^  In  case  nothing  is  said  in  regard 
to  acceptance,  and  there  is  nothing  in  the  circumstances 
attending  the  offer  to  denote  urgency,  it  remains  open  for  a 
reasonable  time;^^  and  parol  evidence  would,  in  such  case,  be 
admissible  to  show  what  would  be  a  reasonable  time.^^ 

Further,  where  letters  are  relied  upon,  either  independently 
or  in  connection  with  other  writings,  they  must  upon  their 
face  sufficiently  demonstrate  their  reference  to  the  agreement 
in  question  without  the  aid 'of  parol  proof, ^''^  and  in  this 
respect  come  fully  within  the  rule  in  reference  to  collateral 
papers.  This  applies  with  particular  force  to  letters  written 
by  the  person  who  seeks  to  enforce  the  contract;  for,  not 
being  signed  by  the  person  sought  to  be  charged,  they  do  not 
in  themselves  constitute  a  part  of  the  memorandum  required 
by  the  statute  of  frauds,  and  can  only  be  made  such  by  annex- 
ation and  reference. 

In  the  foregoing  paragraphs  the  subject  has  been  consid- 
ered with  special  reference  to  letters  passing  between  vendor 
and  vendee.  It  would  seem,  however,  if  the  memorandum  is 
otherwise  sufficient,  that  it  is  not  necessary  that  the  letters 

Kennedy    v.    Gramling,    33    S.    C.  i*  Maclay  v.  Harvey,  90  HI.  525. 

367.  ^■'  Wilson  v.  Clements,  3  Mass.  1; 

I'i  Nundy   v.    Matthews,    34    Hun  Martin  v.  Black,  21  Ala.  721. 

(N.  Y.),  74.    The  offer  to  accept  in  lu  But  not  to  show  that  at  the 

terms  varying  from  those  proposed  time  of  making  the  proposition  it 

amounts  to  a  rejection  of  the  offer  was  understood  that  it  should  re- 

and  the  substitution  of  a  counter-  main    open    for    a    specific    time, 

proposition  which  cannot  become  a  Stone  v.  Harmon,  31  Minn.  512. 

contract  until  assented  to  by  the  i7  Beckwith  v.  Talbot,   95   U.   S. 

first  proposer.     Fox  v.   Turner,   1  289. 
III.  App.  153. 


THE    MEMORANDUM.  137 

should  liavi'  passed  hctwccii  the  parlies  l(j  the  (.■onlrart. 
Thus,  it  has  been  hehl  in  a  number  of  cases  liiat  llio  cunlracl 
may  be  sulliciently  proved  by  letters  written  by  the  vendor 
to  a  third  party.  These  decisions  announce  the  doctrine  that 
as  the  only  object  of  the  statute  is  to  prevent  perjury  in  the 
setting  up  of  contracts  by  parol  evidence,  a  memorandum  is 
equally  corroborative  whether  it  passes  between  the  parties 
or  between  one  of  them  and  his  (jwn  agent.^* 

§  101.  Telegrams.  Tele;;ra[ihic  correspondence  communi- 
cating- an  oUer,  when  acted  on,''-^  forms  a  contract  governing 
the  acts  of  the  parties  under  the  stipulations  of  the  tele- 
grams;-^ and  when  a  contract  has  been  thus  made,  if  unam- 
biguous in  its  terms,  it  will  not  dill'er  in  legal  eiiect  from 
other  contracts  in  writing.-^  There  must,  of  course,  be  a  dis- 
tinct offer  on  the  one  hand  and  an  acceptance  of  it  on  the 
other,  showing  a  concurrence  of  the  minds  of  the  parties 
upon  all  the  terms  of  the  contract,  before  either  party  is 
bound,--  while  all  the  essential  terms  must  ajjpear  either  by 
the  telegrams  or  other  papers  which  can  be  directly-  connected 
with  them.-3  A  telegraphic  message,  written,  signed  and 
delivered  to  the  telegraph  company  for  transmission,  is  a  suf- 
ficient compliance  with  the  statute  of  frauds  and  binds  the 
sender,24  while  such  message,  if  properly  addressed,  will  be 
presumed  to  have  been  received  in  due  course,  a  presumption 
that  becomes  conclusive  when  not  denied.-^ 

§  102.  Delivery.  The  general  principles  which  govern  the 
operation  of  written  instruments  creating  obligations  or  im- 

i«  Singleton  v.  Hill,  91  Wis.  51;  saying  he  would  take  certain  prop- 

Drury  v.  Young,  58  Md.  546;   Lee  erty  for  the  purchase  of  which  his 

V.  Cherry,  85  Tenn.  707.  agent  had  negotiated,  was  ?icld  not 

I'j  A  telegram  accepting  an  offer,  a  sufficient  memorandum  to  satisfy 
if  sent  within  the  time  agreed  the  statute  of  frauds  where  it  did 
upon,  completes  the  contract.  The  not  express  the  terms  of  the  con- 
time  of  telegraphing  is  the  time  tract,  but  these  would  have  to  be 
when  the  contract  was  closed,  ascertained  from  the  oral  negotia- 
Perry  v.  Iron  Co.  15  R.  I.  380.  tions  between   the  agent  and    the 

20  Duble  V.  Batts,  38  Tex.  312;  vendor.  McElroy  v.  Buck,  35  Mich. 
Eggers  V.  Nesbit,  122  Mo.  667.  434. 

21  Wells  V.  R.  R.  Co.  30  Wis.  605.  24  Hawley  v.  Whipple,  48  N.  H. 

22  Deshon    v.    Fosdick,   1   Woods  487. 

(C.  Ct.),  286.  2- Oregon   S.   S.  Co.  v.   Otis,  100 

23  A  telegram   from  a  principal,    N.  Y.  446. 


138  THE  MEMORANDUM. 

posing  duties  and  burdens  apply  with  equal  force  to  con- 
tracts for  the  sale  or  conveyance  of  land.  The  delivery  of  a 
written  contract  is  indispensable  to  its  binding  effect,  and 
proof  of  same  is  as  necessary  as  of  execution.  Kor  is  a  deliv- 
ery conclusively  proved  by  merely  showing  the  placing  of  the 
paper  by  one  of  the  alleged  contracting  parties  in  the  hands 
of  the  other.  Delivery  is  in  all  cases  a  question  of  intent,  and 
depends  on  whether  the  parties  at  the  time  meant  it  to  be  a 
delivery  to  take  effect  presently.^"  This  subject  is  very  fully 
considered  in  that  part  of  the  work  which  treats  of  the  con- 
veyance, to  which  the  reader  is  referred. 

§  103.  Continued  —  Undelivered  Deeds.  When,  in  pur- 
suance of  a  parol  contract,  a  deed  has  been  drawn  and 
executed,  but  for  any  reason  remains  in  the  hands  of  the  ven- 
dor or  his  agent  undelivered,  such  deed  cannot  be  regarded  as 
a  "note  or  memorandum"  within  the  meaning  of  the  statute, 
unless  it  is  shown  that  it  contains  the  terms  of  the  agree- 
ment and  conditions  of  sale.^^  Such,  at  least,  is  the  reason- 
able inference  to  be  drawn  from  the  adjudicated  cases,  though 
it  must  be  confessed  that  a  perusal  of  same  leaves  the  ques- 
tion in  some  doubt.  In  those  cases  which  seem  to  sustain  the 
doctrine  that  an  executed  but  undelivered  deed  may  be 
resorted  to  and  that  same  will  furnish  a  sufficient  memoran- 
dum of  the  contract  of  sale  under  the  statute,  the  terms  of 

26  Jordan  V.  Davis,  108  111.  336;  first  payment,  with  directions  to 
Cocks  V.  Barker,  49  N.  Y.  107.  Par-  deliver  them  if  the  counsel  ap- 
ties  negotiated  for  the  purchase  by  proved  them.  Plaintiff  subsequent- 
defendant  and  sale  by  plaintiff  of  ly  obtained  one  of  the  duplicates 
certain  lands.  They  agreed  upon  from  the  clerk.  Upon  return  of 
the  price,  and  a  contract  was  drawn  counsel  he  disapproved  the  title, 
and  signed  in  duplicate,  to  which  and  rejected  it  as  defective.  In  an 
P.  attached  his  name  as  a  witness,  action  for  specific  performance. 
While  the  papers  lay  upon  the  held  that  the  facts  justified  a  find- 
table  defendant  inquired  as  to  the  ing  that  no  contract  was  con- 
papers  in  respect  to  title.  Plaintiff  eluded;  that  all  the  acts  of  the  par- 
replied  that  he  had  none.  Defend-  ties  were  to  be  regarded  as  parts 
ant  then  suggested  that,  before  pro-  of  one  transaction,  which  was 
ceeding  further,  the  matter  should  never  consummated,  and  that 
be  submitted  to  his  counsel  for  ap-  there  had  been  no  delivery.  Dietz 
proval,  which  was  assented  to  by  v.  Parish,  79  N.  Y.  520. 
plaintiff.  Counsel  being  absent,  27  Cagger  v.  Lansing,  43  N.  Y. 
the  contracts  were  left  with  a  550;  Campbell  v.  Thomas,  42  Wis. 
clerk,   together   with   a   check   for    437;    Dwain   v.    Burnette,   89   Cal. 


THE  MEMORANDUM. 


130 


the  orif^iual  contract  seem  j,a'iu'rally  to  have  been  recited  or 
the  deeds  to  have  been  connected  with  some  antecedent  agree- 
ment. In  such  cases  the  undelivered  deeds  have  been  resorted 
to  for  the  purpose  of  suiJiilying  omissions  or  inaccuracies 
upon  the  principle  that  they  constituted  but  part  of  a  single 
transaction.^^ 

It  has  been  held  also,  that  a  deed  drawn  and  executed  with 
the  knowledge  of  both  parties,  with  a  view  to  the  consumma- 
tion of  the  contract,  and  which  embodies  the  substance 
though  not  all  of  the  details  or  particulars  of  the  agreement 


564;  Freeland  v.  Charmley,  80  Ind. 
132;  Overman  v.  Kerr,  17  Iowa, 
485. 

28  Thus,  in  Jenkins  v.  Harrison, 
66  Ala.  345,  a  memorandum  in 
writing,  purporting  to  contain  tlie 
terms  of  a  contract  for  the  sale  of 
land,  and  signed  by  both  of  the 
parties,  failed  to  describe  the  prop- 
erty with  the  certainty  and  defi- 
niteness,  required  to  a  specific  per- 
formance, but  deeds,  inoperative 
for  want  of  delivery,  were  exe- 
cuted by  the  parties  a  few  days 
afterwards,  which  did  correctly  de- 
scribe the  land;  and  it  was  held 
that  such  undelivered  deeds,  and 
the  memorandum  signed  by  the 
parties,  might,  when  taken  togeth- 
er, satisfy  the  requisitions  of  the 
statute  of  frauds,  the  court  saying: 
"When  the  memorandum  .  .  . 
is  taken  and  read,  as  it  must  be, 
in  connection  with  the  deeds  sub- 
sequently executed,  there  is  no 
doubt  or  uncertainty  as  to  the 
terms  of  the  contract  for  the  sale 
of  the  lands.  True,  the  deeds  do 
not  expressly  refer  to  the  memo- 
randum, but  they  were  all  exe- 
cuted as  parts  of  a  single  trans- 
action, between  the  same  parties, 
having  reference  to  the  same  sub- 
ject-matter." In  Work  v.  Cowhick, 
81  111.  317,  property  was  struck  off 
to  appellant  as  the  highest  bidder 


at  an  administrator's  sale,  and  the 
administrator's  deed  of  the  land, 
and  a  note  signed  by  the  pur- 
chaser, in  which  she  promised  to 
pay  to  the  administrator  the  pur- 
chase money  "for  land  purchased 
by  Elizabeth  Worth  this  day  at 
administrator's  sale,"  were  left 
with  a  third  person  to  be  held  until 
the  purchaser  should  obtain  per- 
sonal security  on  the  note,  and  ex- 
ecute a  mortgage,  at  which  time 
the  deed  was  to  be  delivered.  It 
was  held,  in  a  suit  by  the  adminis- 
trator against  the  purchaser  for  a 
failure  to  carry  out  the  sale,  that 
the  making  of  the  deed  and  the 
signing  of  the  note  might  be  re- 
garded as  one  transaction,  and 
that  together  they  constituted  such 
proof  as  amounted  to  a  compliance 
with  the  statute  of  frauds;  the  de- 
scription in  the  deed  indicating 
what  land  was  referred  to  by  the 
imperfect  description  in  the  note. 
So.  in  Wood  v.  Davis,  82  111.  311, 
written  authority  to  an  agent  to 
sell  land,  and  the  terms  of  a  con- 
tract of  sale  were  embodied  in  let- 
ters written  by  the  owner,  who  also 
sent  to  the  agent  an  executed  deed 
to  be  delivered,  but  which  was 
never  in  fact  delivered,  and  when, 
after  refusal  by  the  agent  to  con- 
summate the  trade,  suit  for  dam- 
ages was  brought  by  the  purchaser 


1-iO  THE  MEMORANDUM. 

for  sale,  is  a  "note  or  memorandum"  sufficient  to  satisfy  the 
statute.29 

Tlie  general  and  better  rule,  however,  seems  to  be  that  an 
undelivered  deed  is  not,  by  its  own  force  and  aside  from  any 
contract  to  which  it  may  be  related,  a  sufficient  writing  to 
meet  the  requirements  of  the  statute  of  frauds,  and  that  it 
cannot  be  resorted  to  for  the  purpose  of  aiding  the  statute  by 
mere  implication.^^ 

against  the  owner,  it  was  held  that  deed  could  be  referred  to  to  supply 

such  a  contract  was  established  as  the  defect. 

took  the  case  out  of  the  operation  29  Johnston  v.  Jones,  85  Ala.  286. 

of  the  statute  of  frauds,  and  that,  so  Kopp  v.   Reiter,   146    111.   437; 

although     the     memoranda     con-  Cannon   v.   Cannon,    26   N.   J.  Eq. 

tained  no  description  of  the  land,  316;  Johnson  v.  Brook,  31  Miss.  17. 
the  description  in  the  undelivered 


CHAPTER  IV. 


CONSTRUCTION  OF  LAND  CONTRACTS. 


104. 

General  principles. 

§120. 

105. 

When    construction    is    for 
the  court. 

121. 

106. 

When  for  the  jury. 

122. 

107. 

Intention  of  the  parties. 

123, 

108. 

Construction  deduced  from 

124. 

acts. 

125. 

109. 

When   construction    should 

favor  either  party. 

126. 

110. 

Entire   and   separable   con- 

tracts. 

127, 

111. 

Implication. 

128, 

112. 

Mutual   and  dependent  un- 

129. 

dertakings. 

130. 

113. 

Precedent  and  contempora- 

131. 

neous  acts. 

132. 

114. 

Admission     of     parol     evi- 

133. 

dence. 

134. 

115. 

Continued — Collateral   mat- 

ters and  conditions. 

135. 

116. 

Surrounding  circumstances 

136. 

and      pre-existing      rela- 

137. 

tions. 

138. 

117. 

Usage  and  custom. 

139. 

118. 

Ambiguities. 

140. 

119. 

Technical  phrases. 

Contemporaneous   writings. 

Continued — When  variant 
from  each  other. 

Unintelligible  expressions. 

Printed  blanks. 

Interlineations — Erasures. 

Proposals  and  offers — Op- 
tions. 

Continued  —  Option  in 
lease. 

Acceptance, 

Operation  and  effect. 

Recitals. 

Contracts  for  repurchase. 

Bond  for  conveyance. 

The  description. 

Continued — Unlocated  land. 

Continued  —  History  of 
title. 

Description  by  designation. 

The  medium  of  payment. 

Conditions  in  avoidance. 

Time  of  performance. 

Computation  of  time. 

Assignment  of  contract  for 
security. 


§  104.  General  principles.  The  oblijT;ation  of  a  contract  is 
the  legal  duty  of  performiiifi;  it  according  to  its  terms.  There 
can  be  no  legal  duty  without  a  remedy  or  means  of  enforcing 
it;  for  without  such  remedy  a  contract  is  a  mere  imperfect 
obligation,  depending  for  its  performance  upon  the  will  of 
him  from  whom  performance  is  expected.  Parties,  therefore, 
who  enter  into  contracts  must  be  considered  as  looking  to  the 
municipal  law  for  a  remedy  to  enforce  them;  and  this  law, 
thus  in  the  legal  contemplation  of  the  parties,  enters  into  and 
forms  a  part  of  the  obligation.^     It  may  be  further  stated  as 

1  Lessley  v.  Phipps.  49  Miss.  790;  Where  there  is  a  conflict  of  appli- 
Miller  v.  Wilson,  146  111.  523;  Ed-  catory  laws, the  parties  to  an  agree- 
wards  v.   Kearzly,   96   U.    S.   595.    ment  are  presumed  to  have  made  it 

141 


142  CONSTRUCTION  OF  LAND  CONTRACTS. 

a  fundamental  proposition  in  tlie  application  of  tlie  principles 
last  enunciated,  that  all  matters  bearing  upon  the  execution, 
interpretation  and  validity  of  a  contract  are  to  be  determined 
by  the  law  of  the  place  where  it  is  made;  that  all  matters  con- 
nected with  its  performance  are  regulated  by  the  law  prevail- 
ing at  the  place  of  such  i)ei'formance;  and  that  all  matters 
respecting  the  remedies  incident  to  it  depend  upon  the  law  of 
the  place  where  the  suit  is  brought.- 

It  is  a  further  proposition  that  all  contracts  must  receive 
a  reasonable  interpretation  according  to  the  intention  of  the 
parties  at  the  time  of  executing  them,  if  that  intention  can  be 
gathered  from  the  language  which  they  have  employed,^  and 
that  such  intention  is  in  all  cases  the  controlling  principle, 
requiring  the  adoi)tion  of  such  construction  as  shall  carry  the 
same  into  effect  whenever  this  can  be  done  consistently  with 
the  established  rules  of  law.^  The  acts  to  be  performed  under 
the  contract  and  the  manner  of  performance  may  also  be  con- 
sidered,'^  as  well  as  the  acts  leading  to  or  done  at  the  time  of 
execution  or  with  reference  thereto;  and  those  facts  in  view 
of  the  existence  of  which  the  contract  was  entered  into  may 
be  considered  in  construing  a  clause  thereof  the  meaning  of 

with  reference  to  that  statute  tract  will  bind  the  contracting 
which  is  most  favorable  to  its  va-  party  to  do  all  such  legal  acts  as 
lidity  and  performance.  Talbot  v.  are  necessary  according  to  the  law 
Trans.  Co.,  41  Iowa  247.  of  the  place  where  they  are  to  op- 
2  Scudder  v.  Union  Nat.  Bank,  erate,  so  that  they  may  have  their 
91  U.  S.  406;  Morgan  v.  R.  R.  Co.,  full  legal  effect.  Carnegie  v.  Mori- 
2  Woods  (C.  Ct.)  244.  Generally  son,  2  Met.  (Mass.)  381.  Con- 
a  contract  which  is  valid  in  the  tracts  in  relation  to  land  must  be 
state  in  which  it  was  made  should  made  in  conformity  to  the  local 
be  enforced  in  another  state,  un-  laws.  And  such  local  laws  must 
less  it  is  clearly  contrary  to  good  also  be  resorted  to  for  the  purpose 
morals  or  repugnant  to  the  policy  of  determining  what  is  to  be  Con- 
or positive  institutions  of  that  sidered  real  property.  Chapman  v. 
state.  Phinney  v.  Baldwin,  16  111.  Robertson,  6  Paige  (N.  Y.)  627. 
108;  Robinson  v.  Queen,  87  Tenn.  3  Crabtree  v.  Hagenbaugh,  25  111. 
445.  Where  a  contract  made  in  233;  Goosey  v.  Goosey,  48  Miss, 
one  place  contemplates  the  execu-  210;  Barlow  v.  Scott,  24  N.  Y.  40. 
tion  of  deeds  or  other  contracts,  •*  Atwood  v.  Cobb,  16  Pick, 
making  payments  or  doing  other  (Mass.)  227;  Hurley  v.  Brown,  98 
legal  acts  in  another  place,  the  law  Mass.  545;  Ives  v.  Hazzard,  4  R.  I. 
of  the  place  where  the  acts  are  to  29;  Stout  v.  Whitney,  12  111.  218; 
be  done  will  govern  the  contract;  Coey  v.  Lehman,  79  111.  173. 
and    the    obligation    of    such   con-  s  People  v.  Gosper,  3  Neb.   285; 


CONSTRUCTION  OF  LAND  CONTRACTS.  143 

vvliicli  is  obscurr,"  while  the  wliolc  coiilract  .slKjiild  always  be 
considered  in  detennininj;  the  meaning  of  any  of  its  partsJ 
IJut  where  tlie  contract  bears  snch  inherent  evidence  of  its 
true  nieaninj;  thai  i1  cari'ies  a  clear  legal  conviction,  evidence 
of  llic  inteiilion  of  llic  i)arli('s  as  fuiiiislied  by  other  sources 
or  of  sui-roiindiiig  circuiiislaiices  is  properly  excluded.** 

A  contract  should  be  cdustrued  so  as  not  to  give  either 
jiarly  an  uiilair  or  uiircasniiablc  advantage  over  the  other, 
unless  such  was  the  nuinili'st  inteulien  of  the  parties  at  the 
time  it  was  made;  for  it  is  one  of  the  cherislied  objects  of  the 
law  to  luaintain  a  recijjrocity  between  parties  to  a  contract 
whenever  it  can  be  done  without  doing  violence  to  the  lan- 
guage used." 

To  the  end  tliat  etTect  may  be  given  to  the  intent  of  the 
parties  in  the  inteijjretation  'of  their  contracts,  courts  may 
consider  the  circuiustances  of  their  situation  and  the  subject- 
matter  of  their  meeting,'"  as  well  as  any  practical  interpre- 
tation of  the  agreement  wliich  they  may  have  given  to  it  by 
I  heir  acts;^^  and  where  a  written  contract  has  been  fully  per- 
formed within  its  ajjparent  intent  and  reasonable  require- 
ments, and  to  the  evident  satisfaction  of  the  parties  at  the 
time,  and  it  is  not  made  to  apjtear  that  there  was  any  mutual 
error  arising  from  mistake  of  fact,  or  any  practicing  of  fraud, 
courts  should  not  interfere.^- 

§  105.  When  construction  is  for  the  court.  It  is  a  general 
and  well-estal)lislied  rule  that,  wiiere  the  terms  of  a  contract 
are  undispuled,  the  question  as  to  the  nature,  extent  and 
elVect  thereof  and  of  the  interests  of  the  parties  thereto  is  to 

Dunn  V.  Moore,  16  111.  151;  Pollard  135;    Robinson    v.    Fiske,    25    Me. 

V.  Maddox,  28  Ala.  321;  Sumner  v.  401;  Lacey  v.  Green,  84  Pa.  St.  514; 

Williams,  8  Mass.  162.  Pollard  v.  Maddox,  28  Ala.  321. 

<■•  Stapenhorst  v.  Wolff,  35  N.  Y.  n  Williamson    v.    McHatton,    16 

Sup.  Ct.  25;   Parmelee  v.  Hamble-  La.  Ann.  196;  Chicago  v.  Sheldon, 

ton,  24  111.  605;  Strong  v.  Gregory,  9  Wall.  (U.  S.)  50. 

19  Ala.  146.  12  Lathers   v.   Keogh,   109   N.   Y. 

7  People  V.  Gosper,  3   Neb.  285;  583;  Casey  v.  Pennoyer,  G  La.  Ann. 

Goosey  v.  Goosey,  48  Miss.  210.  766;    Farley  v.  Pettes,  5  Mo.  App. 

s  Morss    V.    Salisbury,    48    N.    Y.  262.    The  practical  construction  in 

636;   Coey  v.  Lehman,  79  111.  173;  such  cases   is   held   to   control   as 

Watrous  v.  McKie,  54  Tex.  65.  being  in  the  nature  of  an  estoppel. 

»Gale  V.  Dean,  20  111.  320.  Citizens'   Ins.   Co.  v.  Doll,  3:   Md. 

10  Conwell  V.  Pumphrey,   9   Ind.  89, 


144  CONSTRUCTION  OF  LAND  CONTRACTS. 

be  determined  from  the  coutract,  and  is  a  question  of  law  for 
the  court,  whose  duty  it  is  in  every  instance,  where  meaning 
or  effect  is  called  in  question,  to  declare  its  legal  interpreta- 
tion.^3  The  rule  is  the  same  whatever  be  the  character  of  the 
instrument,^  ^  and  has  been  held  to  extend  even  to  the  correct 
reading  of  words  as  well  as  to  their  meaning  and  legal  effect.^"' 
It  seems,  however,  that  although  it  is  the  special  province  of 
the  court  to  construe  and  determine  the  nature  and  charac- 
ter of  documentary  evidence,  which  should  not  for  this  pur- 
pose be  submitted  to  the  jury,^«  yet  if  it  is  so  submitted,  and 
the  jury  construe  it  aright,  the  verdict  will  be  allowed  to 
stand  and  the  submission  will  furnish  no  ground  for  excep- 
tion.i7 

§  106.  When  for  the  jury.  While  it  is  true,  as  a  general 
rule,  that  the  interpretation  of  written  instruments  properly 
belongs  to  the  court,  whose  province  it  is  to  construe  con- 
tracts, and  not  to  the  jury,  yet  there  are  many  cases  in  which, 
from  the  different  senses  of  the  words  used,  or  their  obscure 
and  indeteiTBinate  reference  to  unexplained  circumstances, 
the  interpretation  of  the  language  may  be  left  to  the  consider- 
ation of  the  jury  for  the  purpose  of  carrying  into  effect  the 
real  intention  of  the  parties.^*^  Thus,  where  the  instrument 
contains  terms  or  words  used  in  a  sense  peculiar  to  some  art 
or  business,  the  determination  of  the  sense  in  which  such 
terms  or  words  are  employed  may  be  properly  left  to  the 
jury .19     In  like  manner,  if  the  writing  is  obscure  or  ambig- 

13  Williams    v.    Waters,    36    Ga.  Md.  264;   Woodman  v.  Chesley,  39 

454;  Kidd  v.  Cromwell,  17  Ala.  648;  Me.  45;  Morse  v.  Weymouth,  28  Vt. 

Andrews  v.  Telford,  37  Iowa  314;  825, 

Fowle    V.    Biglow,    10    Mass.    379;  i^  Martineau  v.   Steele,   14   Wis. 

McKenzie  v.  Sykes,  47  Mich.  294;  272. 

Groat  V.  Gile,  51  N.  Y.  431.  is  Brown  v.  McGrau,  14  Pet.   (U. 

i^Lowry  v.  Megee,  52  Ind.  107;  S.)    493;    Jennings  v.  Sherwood,  8 

Nash  V.   Drisco,   51   Me.  417;    Sea-  Conn.  122;  Bank  v.  Dana,  79  N.  Y, 

ward  V.  Malatte,  15  Cal.  304;  Mon-  108. 

tag  V.  Lynn,  23  111.  551.  i9  Goddard    v.    Foster,    17    Wall. 

15  Lapeer  Ins.  Co.  v.  Doyle,  30  (U.S.)  123;  Williams  v.  Woods,  16 
Mich.  159.  But  this  is  hardly  in  Md.  220;  Eaton  v.  Smith,  20  Pick, 
consonance  with  the  volume  of  au-  (Mass.)  156;  Prather  v.  Ross,  17 
thority,  and  is  rather  an  invasion  Ind.  495;  Sellars  v.  Johnson,  65  N. 
of  the  province  of  the  jury.  C.   104;    McAvoy  v.   Long,   13    111. 

16  Warner    v.    Miltenberger,    21  147. 


CONSTRUCTION  OF  LAND  CONTRACTS.  145 

uous,  when  such  obscurity  or  ambij^uity  arises  from  unfamil- 
iar words  or  terms,  or  from  indistinct  cliiro^iapliy,  or  eras- 
ures, and,  in  some  instances,  where  the  meaninj^  of  the  con- 
tract depends  upon  facts  aliunde,  in  connection  with  the  writ- 
ten hin<i:ua«!:e,  it  shoukl  ;jjo  to  the  jury  to  ascertain  and  deter- 
mine the  intention.-'^ 

§  107.  Intention  of  the  parties.  The  primary  inquiry  in 
the  interjjretation  of  a  contract  is  directed  to  the  intention  of 
the  parties  thereto  at  the  time  of  its  execution;  and  the  car- 
dinal rule  applicable  to  the  same  is  that  such  intention,  so 
far  as  it  can  be  ascertained,  must  govem.^V  Where  the  con- 
tract is  clear  and  unambiguous  in  its  temis,  it  is  the  best 
evidence  of  such  intention;  and  even  though  the  parties  may 
have  failed  to  express  their  real  intention  there  is  no  room  for 
construction,  and  the  legal  effect  of  the  agreement  must  be 
enforced  according  to  the  plain  import  of  the  language 
employed.--  If  the  language  is  ambiguous  courts  uniformly 
endeavor  to  ascertain  the  true  meaning,  and  to  adopt  such, 
a  construction  as  will  give  effect  to  the  provisions  which  carry 
out  the  evident  intent.-^  Facts  existing  at  the  time  of  the 
making  of  an  obscurely-worded  contract  are  available  to 
explain  the  language  used;^'*  and  courts  may  look  to  the  cir- 
cumstances attending  the  contracting  parties,  as  well  as  to 
the  terms  of  the  contract  itself,  to  learn  the  purposes  and 
objects  contemplated  thereby,  as  aids  to  a  correct  understand- 
ing of  a  i^articular  part,  supposed  to  be  equivocal  or  doubt- 
ful,25  but  the  verbal  language  employed  by  the  parties  in 

20  Holland  v.  Long,  57  Ga.  36;  Y.)  172;  Green  v.  Day,  34  Iowa 
Paine  v.  Ringold,  43  Mich.  341;  328;  Ker  v.  Evershed,  41  La.  Ann. 
Bank  v.  Dana,  79  N.  Y.  108.  15. 

21  Higgins  V.  Wasgatt,  34  Me.  23  People  v.  Gosper,  3  Neb.  285; 
305;  Belmont  v.  Cowan,  22  N.  Y.  Walker  v.  Tucker,  70  111.  527; 
438;    Field   v.   Leiter,  118   111.   17;  Steele  v.  Branch,  40  Cal.  3. 

Bent  v.  Rogers,  137  Mass.  192;  Wa-  24  Dent  v.  North  American,  etc., 
terman  v.  Andrews,  14  R.  I.  589;  Co.,  49  N.  Y.  390;  Strong  v.  Greg- 
Bryan  V.  Bradley,  16  Conn.  474;  ory,  19  Ala.  146;  Robinson  v. 
Pike  V.  Monroe,  36  Me.  309;  Mills  Fiske,  25  Me.  401;  Lacey  v.  Green. 
V.  Catlin.  22  Vt.  98.  84  Pa.  St.  514. 


2-'  Walker  v.  Tucker,  70  111.  527 
Babb    V.    Bancroft,    13    Kan.    123 
Brannan   v.    Messick,   10   Cal.   95 
Jackson  v.  Blodgett,  16  Johns.  (N.    265 
10 


25  Pratt  V.  Canton  Cotton  Co.  51 
Miss.  470;  Lacy  v.  Green,  84  Pa. 
St.  514;  Kuecken  v.  Valtz,  110  111. 


14G  CONSTRUCTION  OF  LAND  CONTRACTS. 

making  the  contract  cannot  be  resorted  to,  nor  will  their 
understanding  as  to  the  conditions  and  effect  of  their  written 
contract  be  received  to  affect  its  construction.-*^  The  con- 
struction of  a  contract  does  not  depend  upon  what  either 
party  thought,  but  upon  what  both  have  agreed.-''^ 

It  has  been  held,  however,  that,  while  the  understanding  of 
the  parties  as  to  the  conditions  and  effect  of  their  contract 
cannot  be  received  to  affect  its  construction,  their  under- 
standing of  the  meaning  of  terms  employed  in  it  may  be 
shown  ;-''^  and  a  party  to  the  same  will  usually  be  held  to  that 
meaning  which  he  knew  the  other  party  supposed  the  words 
to  bear,  if  this  can  be  done  without  making  a  new  contract.^^ 

The  intention  is  further  to  be  ascertained  rather  from  the 
order  of  time  in  which  the  acts  are  to  be  done  than  from  the 
structure  of  the  instrument  or  the  arrangement  of  the  cov- 
enants.30 

§  108.  Construction  deduced  from  acts.  While  the  rule 
still  holds  that,  where  parties  reduce  their  contracts  to  writ- 
ing, they  must  be  governed  by  its  provisions,  and  their  inten- 
tion must  be  gathered  from  its  terms;  yet  this  applies  in  its 
strict  sense  only  where  the  intention  is  apparent.  It  will  fre- 
quently happen,  through  inadvertence  or  other  reason,  that 
the  language  employed  does  not  fully  disclose  the  true  intent, 
and  resort  is  necessarily  had  to  acts  to  supplement  the  written 

2G  Dent  V.  North  American,  etc.,  to  happen  on  the  performance  of 

Co.,    49    N.   Y.  390;      Haddock    v.  that  which  is  the  consideration  of 

"Woods,   46  Iowa  433;    Watrous  v.  it,  no  action  can  be  maintained  be- 

McKie,  54  Tex.  65.  fore  performance.    Dunn  v.  Moore, 

27  Brunhila  v.  Freeman,  77  N.  C.  16  111.  151.     On  the  other  hand,  if 

128;    Clark   v.   Lillie,   39  Vt.   405;  a   day  be   appointed   for   the   pay- 

Watrous  v.  McKie,  54  Tex.  65.  ment  of  money  or  part  of  it,  or  for 

s.'i  Thus,    evidence    may    be    re-  doing  any  other  act,  and  the  day 

ceived  that  by  "current  funds"  the  is  to  happen  or  may  happen  before 

parties  meant  money.    Haddock  v.  the  thing  which  is  the  considera- 

Woods,  46  Iowa  433;  and  see  Bar-  tion  of  the  money  or  other  act  is  to 

low  v.  Scott,  24  N.  Y.  40.  be   performed,   an   action   may  be 

20  Clinton  County  v.  Ramsey,  20  brought  for  the   money,     or     for 

111.  App.  577;   Wells  v.  Carpenter,  not   doing  such   other  act,   before 

65  111.  447;  Barlow  v.  Scott,  24  N.  performance;    for   it  appears  that 

Y.  40;  Gunnison  V.  Bancroft,  11  Vt.  the  party  relied  upon  his  remedy, 

490.  and   did   not  intend    to   make   the 

30  As  when  a  day  is  fixed  for  the  performance  a  condition  precedent, 

payment  of  money  and  the  day  is  Sheern  v,  Moses,  84  111.  448, 


CONSTRUCTION  OF  LAND  CONTRACTS.  147 

words.  Hence  the  const  ruction  ^^iven  to  u  contruct  by  the 
parties  themselves,  as  shown  by  their  acts  under  it,  may  be 
resorted  to  as  a  means  of  determininjj;  the  true  intention  which 
they  liad  in  view  in  enterini^  into  the  same.''*  As,  althougli 
an  aji^reement  for  conveyance  of  "ten  acres  out  of  one  linndred 
and  sixty  acres"  mij,dit  be  void  for  uncertainty,  yet  where  the 
vendee  has  j^one  into  possession  and  the  parties  liave  j^iven  a 
construction  to  tlieir  contract  b}'  the  manner  in  wliich  they 
have  executed  it,  the  objection  of  uncertainty  in  description 
would  be  removed  ;22  jjuj  [Jk.  fjjct  that  the  jiarties  have 
adopted  a  particular  construction,  and  have  acted  upon  it, 
should  lead  a  court  without  hesitation  to  adopt  that  construc- 
tion as  the  pi'oper  one.^^ 

>i  109.  When  construction  should  favor  either  party.  As 
previously  remarked,  a  contract  should  be  so  construed  as 
not  to  give  either  party  an  unfair  or  unreasonable  advantage 
over  the  other,  the  object  of  the  law  being  to  maintain  as  far 
as  possible  an  entire  reciprocity  between  them.  But  if  a  con- 
tract contains  ambiguous  words,  or  words  of  doubtful  con- 
struction, they  should,  as  a  rule,  be  construed  most  strongly 
against  the  party  who  executed  the  same,  as  the  other  party 
is  not  presumed  to  have  chosen  the  expression  of  doubtful 
meaning.^*  For  this  reason,  where  the  language  of  a  deed 
permits  two  constructions,  that  one  should  be  adopted  which 
is  least  favorable  to  the  grantor ;=*■'''  and  the  same  rule  would 
apply  to  his  contracts  for  conveyance. 

In  every  instance  where  a  party  takes  an  agreement  pre- 
pared by  another,  and  upon  its  faith  incurs  obligations  or 
parts  with  his  property,  he  should  have  a  construction  given 
to  the  instrument  most  favorable  to  himself.^^     This  rule, 

31  Leavers  v.  Cleary,  75  111.  349;  don,  9  Wall.  (U.  S.)  50;  Frlgerio  v. 

Parmelee  v.  Hambleton,  24  111.  605;  Stillman,  17  La.  Ann.  23. 

Nickerson   v.    R.    R.    Co.,   17   Fed.  »•«  Livingstone    v.    Arrington,    28 

Rep.   408;    Hutchins  v.   Dixon,   11  Ala.    424;    Noonan    v.    Bradley,    9 

Md.  29;  Jakeway  v.  Barrett,  38  Vt.  Wall.    (U.  S.)    394;    Massie  v.  Be- 

316;   Pate  v.  French,  122  Ind.  10;  ford.    68    111.    290;    Richardson    v. 

O'Dea  V.   Winona,   41    Minn.   424;  People,    85     111.     495;     Gilbert    v. 

Cobb  V.  McElroy,  79  Iowa  603.  James,  86  N.  C.  244. 

3^  Purinton  v.  R.  R.  Co.,  46  111.  s- Hager  v.   Spect.   52  Cal.    579; 

297.  Mills  V.  Catlin.  22  Vt.  98;  Winslow 

"  ••  Nickerson  v.  R.  R.  Co.,  17  Fed.  v.  Patten,  34  Me.  25. 

Rep.  408;  and  see  Chicago  v.  Shel-  3o  Noonan  v.  Bradley.  9  Wall.  (U. 


148  CONSTRUCTION  OF  LAND  CONTRACTS. 

however,  is  oue  of  last  resort,  and  should  be  applied  only 
where  the  instrument  is  couched  in  such  language  as  to  admit 
equally  of  two  or  more  interpretations.^'^ 

^  110.  Entire  and  separable  contracts.  It  does  not  appear 
that  any  precise  rule  can  be  laid  down  for  the  solution  of  the 
question  whether  a  contract  is  entire  or  separable,  but  it  must 
be  solved  by  considering  both  the  language  and  the  subject- 
matter  of  the  contract.  When  the  price  is  expressly  appor- 
tioned by  the  contract,  or  the  apportionment  may  be  implied 
by  law  to  each  item,  the  contract  will  generally  be  held  to  be 
severable.^s  Usually  the  question  is  regarded  as  a  matter  of 
intention,  to  be  discovered  in  each  case  by  a  view  of  the  lan- 
guage employed  and  the  circumstances  attending  the  subject- 
matter.3'"^ 

The  consideration  to  be  paid,  and  not  the  subject  or  matter 
to  be  performed,  is  usually  the  test  for  determining  whether  a 
contract  is  entire  or  severable;  as,  if  the  contract  consists  of 
several  distinct  items  founded  on  a  consideration  which  is 
apportioned  to  each  item,  it  is  severable.  On  the  other  hand, 
if  the  contract  is  for  the  sale  of  several  distinct  things,  as  for 
the  sale  of  a  town-lot  and  certain  personal  property,  but  all 
for  one  consideration,  the  contract  is  entire  and  not  divisible, 
except  by  the  consent  of  both  parties  thereto  and  the  making 
of  a  new  contract.^^ 

So,  also,  a  joint  contract  by  two  persons  for  the  purchase  of 
land  is  an  entirety,  and  cannot  be  repudiated  by  one  without 
the  assent  of  the  other.'^i 

§  111.  Implication.  While  necessary  implication  is  as 
much  a  part  of  a  written  instrument  as  if  that  which  is  so 
implied  was  plainly  expressed,  yet  omissions  and  defects  can- 
not be  supplied  by  virtue  of  this  rule,  unless  the  implication 

S.)  394;  Livingstone  v.  Arrington,  property,"  the  "coal  to  be  paid  for 

28  Ala.  424;    Hoover  v.   Miller,   6  at  the  rate  of  half  a  cent  a  bushel," 

La.  Ann.  204;  Barney  v.  Newcomb,  held  on  its  face  to  be  a  divisible 

9  Cush.  (Mass.)  46.  contract.     Graver  v.  Scott,  80  Pa. 

37  Palley  v.  Giles,  29  Ind.  114.  St.  88. 

38  Moore  v.  Bonnet,  40  Cal.  251;  «  Scheland  v.  Erpelding,  6  Ore. 
Oil  Co.  V.  Brewer,  66  Pa.  St.  351.  258. 

39  Southwell  v.  Beezley,  5  Ore.  ^i  Merriman  v.  Norman,  9  Heisk. 
458.     A  contract  for  the  sale  of  a  (Tenn.)  269. 

parcel  of  land,  "also  a  tract  of  coal 


CONSTRUCTION  OF  LAND  CONTRACTS.  149 

results  from  llu-  lanyiiay;e  euiplovcd  in  the  iustrument,  or  is 
iiidi.spt'usable  to  tai ly  the  intention  of  the  parties  into  effect.^- 

^  112.  Mutual  and  dependent  undertakings.  Undertakinj^s 
are  said  to  be  imitual  and  dependent  when  eaeh  forms  the 
consideration  for  the  other;  as,  where  a  party  purchases  land 
and  <;ives  notes  for  the  purchase  money,  and  the  vendor  at 
the  same  time  ajjrees  to  convey  the  laud  by  deed  to  the  pur- 
chaser upon  the  payment  of  all  the  notes,  the  execution  an<l 
delivery  of  a  deed  of  conveyance  by  the  vendor  and  the  pay- 
ment of  the  last  note  are  mutual  and  dependent  acts.  Where 
acts  are  mutual  and  dependent  neither  party  can  require  the 
other  to  proceed  until  he  has  perfonned  or  offered  to  perform 
his  part  of  the  contract;  nor  is  either  party  in  default  so  as  to 
release  the  other  from  his  j)art  of  the  agreement.^^  On  the 
other  hand,  where  the  covenants  or  undertakings  are  inde- 
pendent of  each  other,  one  party  may  maintain  an  action 
against  the  other  without  averring  a  performance,  or  an  offer 
of  performance,  on  his  part.-*^ 

Covenants  and  undertakings  are  construed  to  be  dependent 
or  independent,  according  to  the  intention  of  the  parties,  if 
that  intention  cnn  be  discovered;  but,  unless  it  is  clearly  made 
to  appear  that  the  intention  was  that  the  covenants  should  be 
independent,  thej'  will  be  deemed  dependent.*^  The  intention 
of  the  parties  as  expressed  by  the  language  of  the  contract, 
and  not  technical  and  artificial  rules,  must  govern  in  deciding 
whether  stipulations  are  conditional  or  independent  or 
mutually  dependent;  while  the  nature  of  the  transactions, 
and  the  order  of  time  in  which  they  are  to  be  performed,  ma}' 
further  be  considered  in  arriving  at  a  determination.^"'  In  a 
contract  relative  to  the  same  subject-matter,  some  stipula- 

42  Hudson  Canal  Co.  v.  Coal  Co.,  consideration  of  the  other,  and 
8  Wall.  (U.  S.)  276.  there  was  no  time  fixed  for  mak- 

43  Campbell  v.  Gittings,  19  Ohio,  ing  them,  the  agreements  were 
347;  Jones  v.  Marsh,  22  Vt.  144;  held  to  be  mutual  and  dependent. 
Swan  V.  Drury,  22  Pick.  (Mass.)  Couch  v.  Ingersoll,  2  Pick.  (Mass.) 
485;    Bourland    v.    Sickles,    26    111.  292. 

497;   Sheern  v.  Moses,  84  111.  448;  *•*  Prairie  Farmer  Co.  v.  Taylor, 

Smith  V.  Lewis,     26     Conn.     110;  69  111.  440. 

Howe  V.   Huntington,  15  Me.  350.  ^s  Hamilton  v.  Thrall,  7  Neb.  210. 

Where    agreements    were    recipro-  ^e  Howland    v.    Leach,    11    Pick, 

cally  entered  into  for  exchange  of  (Mass.)  151;  Hopkins  v.  Young.  11 

lands,  one  conveyance    being    the  Mass.  302. 


150  CONSTRUCTION  OF  LAND  CONTRACTS. 

lions     may     be    independent,     and     others    dependent    and 
niuluallj  conditional.^'^ 

v?  113.  Precedent  and  contemporaneous  acts.  Even  in  the 
case  of  muUial  and  dependent  undertakings  there  must  of 
necessity  be  some  order  of  precedence,  although  it  may  in 
many  cases  be  hardly  appreciable.  Thus,  the  payment  of  the 
purchase  money  and  the  delivery  of  the  deed  are,  in  most 
cases,  and  in  the  absence  of  special  stipulations,  to  be  deemed 
mutual  and  concurrent  acts;  yet  a  vendee  is  not  entitled  to  a 
deed,  unless  the  contract  otherwise  provide,  until  he  has 
made  payment,^^  and  if  the  payment  of  any  part  of  the  pur- 
chase money  is  deferred  the  giving  of  the  deed  should  pre- 
cede the  delivery  of  a  mortgage  to  secure  the  deferred  pay- 
ments.-*^  Practically  these  acts  may  be  contemporaneous; 
but  the  rights  and  liabilities  of  the  parties,  whether  for 
specific  enforcement  or  rescission,  are  usually  fixed  with 
regard  to  this  order  of  precedence. 

§  114.  Admission  of  parol  evidence.  When  parties  have 
deliberately  put  their  engagements  in  writing  in  such  terms 
as  to  import  a  legal  obligation,  without  any  uncertainty  as  to 
the  object  or  extent  of  such  engagement,  it  is  conclusively 
presumed  that  the  whole  agreement  of  the  parties,  and  the 
extent  and  manner  of  their  undertaking,  was  reduced  to  writ- 
ing; and  all  antecedent  verbal  propositions  and  contem- 
poraneous agreements  are  considered  as  merged  in  the  writ- 
ing, from  which  alone  is  to  be  determined  the  terms  and  con- 
ditions of  the  contract  and  the  liability  of  the  parties.^^ 
Parol  evidence  is  inadmissible,  therefore,  to  alter,  vary  or 
control  such  a  contract,  or  to  annex  thereto  a  condition  or 

47  A  contract  was  made  to  con-  and  of  the  othei*  to  execute  and  de- 

vey  certain  land,  a  part  of  the  con-  liver  a   deed,   were    mutually    de- 

sideration  of  which  was  to  be  paid  pendent  and  conditional.     Kane  v. 

in  ten  days  and  a  "half  of  the  re-  Hood,  13  Pick.  (Mass.)  281. 

mainder  in  twelve  months,  and  the  *»  Terry  v.  George,  37  Miss.  539; 

other  half  in  two  years,  with  in-  Headley  v.  Shaw,  39  111.  354. 

terest  annually,  and  the  deed  to  be  <»  Papin  v.  Goodrich,  103  111.  86. 

executed  at  the  completing  the  last  so  Merchants'   Ins.   Co   v.   Morri- 

payment."     It  was    held    that    the  son,  62  111.  242;  Weaver  v.  Fries,  85 

agreement  to  pay  the  two  first  in-  111.  356;    Walterhouse  v.  Garrard, 

stalments     was    independent,     but  70  Ind.  400;  Charles  v.  Dennis,  42 

that    the    agreement    of    the    one  Wis.  56;   Hunt  v.  Adams,  7  Mass. 

party  to  pay  the   last  instalment,  518;   Curtis  v.  Wakefield,  15  Pick. 


CONSTRUCTION  OF  LAND  CONTRACTS.  151 

defeasance  nut  iippcariii"^  on  the  coiitiacl  itself;"''  and  this 
rule,  establislu'd  and  suslained  by  innumerable  dceisiuns.  uu 
account  of  its  inipoitance  is  never  to  be  relaxed  iu  any  dcj^ree. 
The  rule  itself  is  founded  on  the  long  experience  that  written 
evidence  is  so  much  more  certain  and  accurate  than  that 
which  rests  in  fleeting  memory  only  that  it  would  be  unsafe, 
when  parties  have  expressed  the  terms  of  their  contract  in 
writing,  to  admit  weaker  evidence  to  control  and  vary  the 
stronger,  and  to  show  that  parties  intended  a  dillerent  con- 
tract from  that  expressed  in  the  writing  signed  by  them.^- 
Fraud,  duress,  illegality  or  other  matters  aifecting  the  valid- 
ity of  the  instrument  or  the  contract  thereby  evidenced  may 
be  shown,  and  parol  evidence  is  freely  and  usually  necessarily 
received  to  demonstrate  the  same/'^  But  with  this  exception 
the  rule  holds  absolute;  and  obligations  which  parties  have 
deliberatelj'  entered  into  and  put  in  writing,  if  free  from 
ambiguity  or  uncertainty,  cannot  be  pared  dow-n,  taken  away 
or  enlarged  by  parol  e\idence.^^  The  inconvenience  that 
would  arise  if  matters  in  writing  were  left  to  be  proved  by 
the  uncertain  testimony  of  defective  memory  is  apparent 
without  demonstration;  while  the  dangers  that  might  result, 
even  where  parties  act  in  good  faith,  is  abundantly  shown  in 
the  history  of  the  decided  cases  where  the  rule  has  been 
invoked  and  applied. 

It  has  been  held  that   the   rule  does  not  apply  where  it 
appears  from  the  writing  itself  that  it  does  not  contain  the 

(Mass.)    437;    Williams   v.   Robin-  varied    by   parol    evidence   of   lost 

son,  73  Me.  186;   Polhill  v.  Brown,  documents   or  letters   which   have 

84  Ga.  338;  Bruns  v.  Schreiber,  43  passed  between  the  parties  before 

Minn.  468.  it  was  executed.    Gage  v.  Phillips, 

51  Black  V.  Bachelder,  120  Mass.  21  Neb.  150. 

171;  Mott  V.  Richtmeyer,  57  N.  Y.  sj  Underwood     v.     Simonds,     12 

49;   Naumburg  v.  Young,  44  N.  J.  Met.  (Mass.)   275. 

L.  331;    Martin  v.  Cole,  104  U.  S.  5:!  Sherman  v.  Wilder,  106  Mass. 

30;  McDonald  v.  Elfes,  61  Ind.  279;  537;  Paine  v.  Upton,  87  N.  Y.  327; 

Richardson    v.    Johnson,     41     Wis.  Barnet    v.    Abbott,     73     Vt.     120; 

100;    Rockmore   v.   Davenport,    14  Friend  v.  Miller,  52  Kan.  139;  Roe 

Tex.  602.    And  if,  in  fact,  some  of  v.  Kiser,  62  Ark.  92. 

the    conditions   actually    made    be  ■>*  Black  v.  Bachelder,  120  Mass. 

omitted  from  the  contract,  the  de-  171;  Knox  v.  Clifford,  38  Wis.  651; 

fendant    cannot    avail    himself    of  McLellan  v.  Bank.  24  Me.  566;  Hol- 

them.     Williams   v.   Robinson,    73  brook  v.  Holbrook,  30  Vt.  432. 
Me.  186.     Nor  can  the  contract  be 


153  CONSTRUCTION  OF  LAND  CONTRACTS. 

whole  agreement,^'''  and  that  parol  evidence  is  admissible  to 
prove  the  portion  which  the  parties  omitted;  and,  in  like 
manner,  that  it  does  not  operate  to  exclude  proof  of  collateral 
or  superadded  agreements,  provided  the  agreements  so  sought 
to  be  i)roved  be  not  inconsistent  with  the  writing.  The  admis- 
sion of  parol  evidence  for  these  purposes,  it  is  claimed,  does 
not  constitute  a  real  exception  to  the  rule,  as  it  is  received  on 
the  ground  that  the  agreement  to  which  it  relates  has  not 
been  reduced  to  writing.^^^  In  ordinary  mercantile  transac- 
tions the  principle  is  undoubtedly  correct,  or  when  applied  to 
any  contract  which,  althongli  ])ur})()rting  to  be  in  writing,  is 
not  one  of  the  class  which  the  law  requires  shall  be  evidenced 
by  a  writing.  But  a  contract  for  the  sale  of  land  cannot  rest 
partly  in  parol  and  partly  in  writing  ;'^'^  and  while  parol  evi- 
dence might  be  competent  to  show  a  total  or  partial  failure  of 
consideration  of  a  contract,  or  possibly  to  show  a  considera- 
tion different  from  that  expressed  in  the  writing,  it  is  certain 
that  no  proof  of  contemporaneous  agreements  can  be  received 
or  permitted  to  control,  where  the  effect  of  such  agreements 
W'ould  be  to  substitute  something  new  or  different,  or  vary  or 
change  the  operation  of  the  contract  as  expressed  in  the  writ- 
ing.^^ 

It  is  to  be  observed,  however,  that  the  rule  which  forbids 
the  introduction  of  parol  evidence  to  contradict,  add  to  or 
vary  a  written  instrument  does  not  extend  to  evidence  offered 
to  show  that  a  contract  was  made  in  furtherance  of  objects 
forbidden  by  statute,  by  common  law  or  by  the  general  pol- 
icy of  the  law.^^ 

The  rules  of  evidence  are  substantially  the  same  at  law  and 
in  equity;  and  parol  evidence  which  tends  to  materially  alter 
a  written  agreement  cannot  be  received  in  a  court  of  equity 
any  more  than  in  a  court  of  law,^'^  except  in  cases  of  fraud, 
mistake,  surprise  or  accident.^^ 

55  Frey  v.  Vandenhoof,  15  Wis.  ss  Gilbert  v.  Stockman,  76  Wis. 
397.  62;    Sandage   v.    Studabaker,    etc., 

56  Hubbard  v.  Marshall,  50  Wis.    Co.,  142  Ind.  148. 

322;  Chapman  v.  Dobson,  78  N.  Y.  -".o  Martin  v.  Clarke,  8  R.  I.  389. 

74.  ^"  D wight  V.   Pomeroy,  17  Mass. 

r.7  McConnell  v.  Brillhart,  17  111.  303;  Eveleth  v.  Wilson,  15  Me.  109; 

354;    Farwell    v.    Lowther,    18    111.  Tilton  v.  Tilton,     9     N.     H.     392; 

252.  Toomer  v.  Lucas,  13  Gratt.    (Va.) 


CONSTRUCTION  OF  LAND  CONTRACTS.        153 

§  115.  Continued — Collateral  matters  and  conditions.  It  is 
prt'suiiu'd  that  wlieu  a  writk'U  agiecmeiit  is  cntcicd  into  it 
contains  the  vvliolc  of  the  conditions  and  iindcrtakin<j;s  of  the 
parties  to  the  contract;  and  when  parties,  without  any  fraud 
or  mistake,  have  deliberately  put  their  enjj;a^'ements  in  writ- 
in<j:,  the  law  declares  the  writinj;  to  be  not  only  the  best  but 
the  only  evidence  of  the  agreement,  and  courts  are  not  dis- 
posed to  relax  the  rule.  It  has  been  found  to  be  a  wholesome 
one  for  all  purposes;  and  where  parties  are  allowed  to  testify 
in  their  own  behalf,  the  necessity  of  adhering  strictly  to  it  is 
all  the  more  imperative.*^-  In  some  of  the  states  (notably  in 
rcnnsylvania)"''  the  stringency  of  this  rule  has  been  consid- 
erably relaxed,  not  only  with  reference  to  contracts  whicli, 
while  they  have  been  reduced  to  writing,  are  not  such  as  the 
law  re(piires  shall  be  in  writing,  but  also  in  respect  to  con- 
tracts for  the  sale  of  real  property.  But,  even  in  these  states, 
the  general  i)rinciples  first  stated  are  still  rigorously  adhered 
to  so  far  as  respects  the  terms  in  which  the  writing  is  couched, 
and  no  case  goes  the  length  of  ruling  that  parol  evidence  can 
be  admitted  to  change  the  undertaking  itself,  although  it  is 
held  that  evidence  which  goes  to  explain  the  subject-matter 
of  an  agreement  is  essentially  different  from  that  which  varies 
the  terms  in  which  a  contract  is  conceived. 

It  has  been  held  that  the  rule  as  stated  does  not  prevent 
the  parties  to  a  written  agreement  from  proving  that,  either 
contemporaneously  or  as  a  preliminary  measure,  they  had 
entered  into  a  distinct  oral  agreement  on  some  collateral  mat- 
ter which  induced  the  execution  of  the  written  obligation,  or 
which  constitutes  a  condition  on  which  the  performance  of 
the  wa'itten  agreement  is  to  depend.*'^   There  is  nothing  incon- 

705;    Richardson   v.    Thompson,   1  parol  evidence  is  permissible  to  ex- 

Humph.  (Tenn.)  151.  plain  a  written   instrument.     The 

«i  Quinn  v.  Roath,  37  Conn.  16;  courts  of  that  state  have  gone  to 

Bradbury   v.   White,    4    Me.    391;  great  lengths  in  the  matter  of  the 

Chambers  v.  Livermore,   15   Mich,  admissibility    of    parol     evidence, 

381;   Ryno  v.  Darby,  20  N.  J.  Eq.  and     the     Pennsylvania    decisions 

231;    Margraff   v.   Muir,   57   N.    Y.  upon  this  subject  cannot  be  said  to 

155.  be   in   full  accord   with  the  decis- 

02  Bast  V.   Bank,   101   U.    S.   96;  ions  of   other  states,   or  to   truly 

Martin  v.  Berens,  67  Pa.  St.  463.  represent   the   prevailing   doctrine 

By  It  is  extremely  difficult  to  de-  on  this  subject, 

termine    when,    in    Pennsylvania,  04  Michels   v.   Olmstead,   14   Fed. 


154  CONSTRUCTION  OF  LAND  CONTRACTS. 

sistcnt  in  this  rule  with  that  first  stated,  and  its  denial  must, 
in  many  inslances,  work  f^rcat  hardship  and  injustice;  and 
though  it  linds  its  most  frequent  illustrations  in  contracts 
relating  to  chattel  property,  there  is  no  impropriety  in  apply- 
ing it  to  agreements  providing  for  the  sale  of  land/'-'* 

Notwithstanding  the  statute  of  frauds,  it  seems  to  be  a  gen- 
erally accepted  doctrine  tjiat  evidence  is  admissible  of  parol 
.  agreements  as  to  the  proceeds  of  the  sale  of  lands  ;^^  and  this, 
too,  although  the  contract  for  the  sale  of  the  land  was  in 
writing,  if  the  contract  was  made  subject  to  the  agreement.^^ 

It  would  seem,  therefore,  that  parol  evidence  cannot  be 
admitted  to  establish  a  contemporaneous  parol  agreement  to 
change  the  effect  of  a  written  contract,  or  in  violation  of  its 
terms,  but  may  be  received  to  show  an  oral  promise  or  under- 
talcing,  material  to  the  subject-matter  of  the  contract  and  col- 
lateral thereto,  made  by  one  of  the  parties  at  the  time  of  the 
execution  of  the  writing,  and  which  induced  the  other  party 
to  put  his  name  to  it.^^ 

.^116.  Surrounding  circumstances  and  pre-existing  relations. 
While  parol  evidence  is  never  admissible  to  vary,  con- 
tradict or  control  a  written  agreement,  yet  in  construing  the 
same  it  is  proper  to  look  at  all  the  circumstances  surrounding 
the  transaction,  the  pre-existing  relations  of  the  parties,  their 
knowledge  of  the  subject-matter  of  the  contract,  and  the  state 
or  condition  of  that  subject-matter.^^  To  accomplish  this 
parol  evidence  may  be  resorted  to  without  any  violation  of  the 
rule  first  stated;  and  proof  may  be  given,  by  way  of  explana- 

Rep.   219;    Bown  v.   Morange,   108  6g  Trowbridge  v.    Wetherbee,   11 

Pa.  St.  69;  Welz  V.  Rhodius,  87  Ind.  Allen     (Mass.),    361;     Sherrlll    v. 

1;     Galbraith    v.    McLain,    84    111.  Hagan,  92  N.  C.  345 ;  Bruce  v.  Hast- 

379;  Harper  v.  Harper,  57  Ind.  547.  ings,  41  Vt.  38. 

65  Thus,  a  written  lease  of  a  e?  Michael  v.  Foil,  100  N.  C.  178. 
hotel  having  been  extended,  parol  es  See  Clinch,  etc.,  Co.  v.  Willing, 
evidence  was  held  competent  to  180  Pa.  St.  165. 
establish  a  contemporaneous  oral  eo  Springsteen  v.  Samson,  32  N. 
agreement  by  the  lessor,  in  con-  Y.  706;  Matter  of  N.  Y.  C.  R.  R. 
sideration  of  the  lease,  not  to  en-  Co.,  49  N.  Y.  414;  Emery  v.  Web- 
gage  in  a  rival  business  in  the  ster,  42  Me.  204;  Berridge  v.  Glas- 
same  city.  Welz  v.  Rhodius,  87  sey,  112  Pa.  St.  442;  Evans  v.  Gris- 
Ind.  1.  And  see  Remington  v.  com,  42  N.  J.  L.  579;  Lee  v.  Butler, 
Palmer,  62  N.  Y.  31;  Carr  v.  Doo-  167  Mass.  426. 
ley,  119  Mass.  294. 


CONSTRUCTION  OF  LAND  CONTRACTS.  155 

tiou,  to  show  the  situation  of  the  parties,  the  object  in  view, 
or  other  extrinsic  facts  bearinj^  on  the  ciuestion  of  intention, 
which  may  suggest  a  meaning  where  none  was  apparent 
before,  or  which  tend  to  indicate  what  construction  shall  be 
placed  upon  the  language  used  when  the  same  is  susceptible  of 
more  than  one  interpretationJ^  With  the  light  thus  atlorded, 
as  well  as  uj)on  a  view  of  the  whole  instrument,  that  construc- 
tion should  be  adopted  which  seems  most  in  accordance  with 
the  apparent  intent  of  the  partiesJ^  IJut  although  courts, 
when  necessary,  put  themselves  in  possession  of  all  the  facts 
and  circumstances  connected  with  the  execution  of  the  instru- 
ment for  the  purpose  of  ascertaining  the  intention  of  the  x^ar- 
ties  and  explaining  any  ambiguity  arising  from  extrinsic  facts, 
3^et  this  is  never  done  where  the  terms  of  the  instrument  are 
clear  and  unambiguous  and  there  is  no  doubt  as  to  the  identity 
of  the  subject-matter  to  which  the  instrument  relatesJ- 

It  must  further  be  understood  that,  while  it  is  proper  to 
solve  questions  of  ambiguity  by  throwing  upon  the  language 
used  the  light  of  surrounding  circumstances,  the  rule,  so  far 
as  it  can  be  invoked  as  a  rule,  is  one  of  interpretation  merely, 
and  does  not  permit  the  making  of  a  new  contract,  or  a 
reformation  of  it,  or  a  disregard  of  its  terms.  It  authorizes 
only  a  just  construction  of  those  terms  and  a  fair  inference 
as  to  the  common  understanding  of  both  the  contracting 
parties.^^ 

§  117.  Usage  and  custom.  It  is  a  fundamental  proposition 
that  custom  and  usage  are  supposed  to  enter  into  and  form  a 
part  of  all  contracts  where  the  use  or  custom  prevails  in  refer- 
ence to  the  matter  to  which  the  contract  relates,'''^  and  that 
the  contracting  parties  are  not  only  presumed  to  be  acquainted 
with  such  usage,  but  contract  with  reference  to  it.'^^  This 
proposition,  however,  is  usually  restricted  in  its  application 
to  mercantile  transactions  or  particular  branches  of  trade, 

70  Chambers  v.  Falkner,  65  Ala,  "^  Stettauer    v.    Hamlin,    97    111. 

448;    Fenderson   v.   Owen,   54   Me.  312;   Gilbert  v.  Stockman,  76  "Wis. 

372;    McDonald   v.  Timber  Co,,   88  62, 

Tenn,  38;  Peay  v.  Seigler,  48  S.  C,  "  ciark   v.   Woodruff,    83    N.   Y. 

496,  518, 

Ti  Springsteen  v.   Samson,  32  N.  '■«  Doane  v.  Dunham.  79  111.  131, 

Y.  706;   Chambers  v,  Ringstaff,  69  "'-Life  Ins.  Co.  v.  Advance  Co., 

Ala.  140.  80  111.  549. 


15G  CONSTRUCTION  OF  LAND  CONTRACTS. 

aiul  can  seldom  be  invoked  as  an  aid  in  the  interpretation  of 
land  contracts. 

The  principle  upon  which  proof  of  usage  is  admitted  is  that 
it  serves  to  explain  and  ascertain  the  intent  of  the  parties 
upon  some  point  as  to  which  their  contract  is  silent,  and  as  to 
which  there  existed  a  usage  so  long  continued  and  well  known 
as  to  raise  a  fair  presumption  that  it  was  within  the  view  of 
the  contracting  parties  when  they  made  their  agreement,  and 
that  they  contracted  with  reference  to  and  in  conformity  with 
such  usage,  thus  explaining  the  silence  or  omission  of  any 
express  provision  of  the  contract  itself  J®  But  while  a  custom 
or  usage  is  sometimes  permitted  to  affect  a  contract  in  order 
to  explain  or  ascertain  the  intent  of  the  parties,  it  cannot  be 
introduced  in  opposition  to  any  principle  of  general  policy, 
nor  if  it  be  inconsistent  with  the  terms  of  the  agreement,  or 
against  the  established  principles  of  law;'^'^  and  usually, 
where  parties  have  settled  the  terms  and  conditions  of  a  con- 
tract by  agreement,  they  will  be  concluded  by  it  regardless 
of  any  usage  or  customJ^ 

§  118,  Ambiguities.  A  w^riting  is  said  to  be  ambiguous 
when  it  is  capable  of  two  or  more  inconsistent  constructions, 
or  where  there  is  an  uncertainty  in  the  meaning  of  the  expres- 
sions used.  The  term  does  not  include  mere  inaccuracy,  how- 
ever, nor  such  uncertaint}'  as  arises  from  the  use  of  peculiar 
words,  or  of  common  words  used  in  a  peculiar  sense,  but 
intends  only  such  words  or  expressions  as  would  be  found  of 
uncertain  meaning  by  persons  of  competent  skill  and  informa- 
tion.'^^ They  are  classed  as  patent,  or  those  which  exist  or 
appear  on  the  face  of  the  writing  itself;  and  latent,  or  those 
which  arise  from  some  collateral  circumstance  or  extrinsic 
matter  in  cases  where  the  instrument  itself  Is  sufficiently  cer- 
tain and  intelligible.^*^ 

It  is  a  general  rule  that  patent  ambiguities,  or  such  as  arise 
upon  the  words  of  the  instrument,  cannot  be  explained  or 
removed  by  extrinsic  evidence ;^i  and  this    rule    is    usually 

76  Lamb   v.   Klaus,   30   Wis.   94;  gram  on  Wills,  174;  1  Greenl.  Ev. 

Kimball  v.  Brawner,  47  Mo.  398.  §   298;    Chambers  v.  Ringstaff,   69 

"Wilson  V.  Bauman,  80  111.  493.  Ala.  140;  Palmer  v.  Abee,  50  Iowa, 

78Corbett  v.  Underwood,  83  111.  429. 

324.  »•>  1  Bouv.  Law  Diet.  118. 

70  1   Bouv.   Law   Diet.    118;    Wi-  si  Brown  v.  Brown,  43  N.  H.  25; 


CONSTRUCTION  OF  LAND  CONTRACTS.  157 

strictly  adhered  to  in  all  cases  of  the  construction  of  written 
ins<riimeuts.  Latent  anibi^MiKies,  or  those  which  arise,  not 
uixm  the  words  of  the  instiiimciil  considered  in  themselves, 
but  in  their  ai)])lication  to  tlie  subject-matter,  are  j^overned 
by  a  somewhat  diflerent  rule;  and  extrinsic  evidence  will  in 
such  cases  be  received,  not  to  vary  or  chan;j;e  tlie  j)uri)ort  of 
the  instrument,  but  to  aliord  additional  li^ht  in  interpreting 
what  is  there  writt<'n.'*-  A  latent  anibij^uity,  it  is  said,  may 
be  assisted  by  j)arol  evidence,  because  the  ambiguity  beinj; 
raised  b}'  i)arol  nuiy  fairly  be  dissolved  by  the  same  means.^^ 
Hence,  where  any  part  of  (lie  subject-matter  of  the  contract, 
or  the  identity  of  persons,  places  or  documents  therein 
referred  to,  are  uncertain,  and  the  uncertainty  is  shown  by 
extrinsic  matters — that  is,  where  the  words  of  the  a^M-eement, 
although  certain  in  point  of  grammatical  construction  and 
apparently  definite,  are  rendered  uncertain  or  of  doubtful 
aj)plication  by  circumstances  which  appear  aliunde — parol 
evidence  of  the  intention  of  the  parties  at  the  date  of  the 
agreement  is  admissible  in  order  to  identify  the  property, 
document  or  other  thing  or  ])(M'son  intended.*^^  The  subject 
will  be  considered  in  detail  in  the  succeeding  paragraphs. 

§  119.  Technical  phrases,  in  the  construction  of  contracts 
and  agreements  relating  to  land,  courts  are  not  so  frequently 
asked  to  interpret  technical  expressions  or  terms  of  art  as  in 
contracts  more  intimately  connected  with  commercial  sub- 
jects.    Yet  it  will  often  happen  that  very  great  embarrass- 

Pitts  V.  Brown,  49  Vt.  86;  Panton  Pickering  v.   Pickering,   50   N.   H. 

V.    Tefft,    22    111.    366;    McNair   v.  349;   Berridge  v.  Glassey,  112  Pa. 

Toler,  5  Minn.  435;  King  v.  King.  7  St.  442. 

Mass.  496;  Ayres  V.  Weed,  16  Conn.  ^-f  Storer    v.    Freeman,    6    Mass. 

291;  Waldron  v.  Waldron,  45  Mich,  440;  Webster  v.  Atkinson,  4  N.  H. 

350;    Clark    v.    Lancaster,    36    Md.  23;  Eveleth  v.  Wilson,  15  Me.  109; 

196;    King   v.    Fink,    51    Mo.    209;  Pritchard  v.  Hicks,  1  Paige  (N.  Y.) 

Chambers  V.  Ringstaff,  69  Ala.  140;  270;      Brainard     v.     Cowdrey,     16 

Peacher  v.   Strauss,  47   Miss.  358;  Conn.  1. 

Horner  v.  Stillwell,  35  N.  J.  L.  307;  «t  See  Webster  v.  Blount,  39  Mo. 

Lewis  V.  Day,  53  Iowa  575;  Haven  500;   Huntington  v.  Knox,  7  Cush. 

v.  Brown,  7  Me.  421.  (Mass.)    371;    Oelrichs  v.  Ford,  21 

82Bergin  v.  Williams,  138  Mass.  Md.  489;   Bell  v.  Woodward,  46  N. 

544;    Epperson    v.    Young,    8    Tex.  H.  315;   Wing  v.  Gray,  36  Vt.  261; 

135;   Hughes  v.  Wilkinson,  76  Ala.  Hughes  v.  Sandal,  25  Tex.  162;  Ab- 

204;   Cooper  v.  Berry,  21  Ga.  526;  bott  v.  Abbott,  51  Me.  575. 


158  CONSTRUCTION  OF  LAND  CONTRACTS. 

meiit  is  experienced  in  si'^'ins  answers  to  such  questions  as 
do  arise  in  tlie  proper  adjustment  of  the  rights  of  parties 
under  contracts  for  the  sale  of  interests  in  or  connected  with 
real  property.  Thus,  by  the  use  of  the  terms  "mines  and 
minerals,"  a  wide  field  is  opened.  It  may  be  that  the  vendor 
did  not  intend  to  include  everything  embraced  in  the  mineral 
kingdom  as  distinguished  from  what  belongs  to  the  animal 
and  vegetable  kingdoms;  if  he  did,  notwithstanding  the  grant 
is  only  of  the  mines  and  minerals,  he  has  parted  with  the  soil 
itself.  But  such  a  construction,  in  a  case  similar  to  that 
stated,  would  be  inconsistent  with  and  repugnant  to  the 
whole  tenor  of  the  grant.  On  the  other  hand,  there  exists  no 
more  propriety  in  confining  the  meaning  of  the  terms  used 
to  any  one  or  more  of  the  subordinate  divisions  of  the  earth's 
composition.  This  is  cited  as  an  illustration  of  what  may, 
and  frequently  does,  occur  in  loosely-constructed  agreements, 
where  technical  phrases  are  carelessly  employed  to  denote 
matters  which  should  be  stated  with  specific  exactness  and 
accuracy  of  detail. 

The  general  rule  is  that  the  intent,  when  apparent  and  not 
repugnant  to  an}'  rule  of  law,  will  control  technical  terms, 
and  that,  upon  the  view  and  comparison  of  the  whole  instru- 
ment, endeavor  should  be  made  to  give  every  part  of  it  mean- 
ing and  effect.^'^  If  upon  such  a  survey  it  clearly  appears  that 
a  technical  word  or  phrase  is  used  in  a  sense  evidently  differ- 
ent from  its  ordinary  technical  signification,  and  the  sense  in 
which  it  is  used  is  plainly  shown  by  the  general  manifestation 
of  intention  as  disclosed  by  the  entire  instrument,  courts  will 
usually  give  to  it  that  construction  which  the  parties  clearly 
intended.*^  ^^ 

The  terms  may  receive  a  restricted  meaning  through  inter- 
pretation which  has  been  assisted  by  a  survey  of  the  circum- 
stances surrounding  the  parties,  and  relating  to  the  subject- 
matter  of  the  contract  at  the  time  when  it  was  made.  As  to 
the  extent  to  which  parol  testimony  is  admissible  in  giving 
an  interpretation  or  a  proper  definition  of  the  words  used  no 

85  Parker  v.  Nichols,  7  Pick.  47  Cal.  151;  Morrison  v.  Wilson,  30 
(Mass.)  Ill;  Jackson  v.  Blodgett,  Cal.  344;  Bradshaw  v.  Bradbury,  64 
16  Johns.  (N.  Y.)  172;  Bryan  v.  Mo.  334;  Jackson  v.  Blodgett.  16 
Bradley,  16  Conn.  474.  Johns.  (N.  Y.)  172. 

86  Central  Pac.  R.  R.  Co.  v.  Beal, 


CONSTRUCTION  OF  LAND  CONTRACTS.  159 

positive  rule  can  Ix*  laid  down.  Wlici-c  a  term  of  art  i.s 
cniplovcd,  or  a  word  connected  witli  Konie  depart inent  of  the 
natnial  world,  which  has  Ix-conie  teclmical  and  popular  in  its 
use  anion<x  scienlilic  men  and  men  of  letters,  a  court,  wheu 
called  nj)on  to  ^ive  a  const  ruction  to  such  words,  may  avail 
itself  of  parol  testimony  to  ascertain  the  technical  and  j)Opu- 
lar  use  of  the  word.  But  parol  testimony  is  not  admissible, 
nnch'i- any  circumstances,  to  show  that  the  j)arties  to  an  instru- 
ment in  writing;  under  seal  placed  ujwn  a  particular  word  or 
l)liraseology,  which  controls  the  whole  effect  and  value  of 
the  writinji:,  any  limited  or  definite  meaning  for  the  purposes 
of  that  particular  transaction. 

Good  conveyancing  will  strictly  exclude  ambiguous  terms, 
words,  symbols  and  other  expressions  of  like  character;  yet, 
as  these  matters  are  constantly  employed,  courts  are  fre- 
quently called  upon  to  furnish  an  interpretation  of  them. 
Thus,  the  s.Mnbol  ''etc."  is  often  employed  in  connection  with 
specific  terms  of  exact  and  restricted  meaning;  as  where 
parties  make  calculations  and  adjustments  of  tlie  amounts 
to  be  paid  with  reference  to  "rents,  interest,  etc."  The  use  of 
this  sign  or  term  may  sometimes  present  an  apparent  ambi- 
guity; but  where  a  view  of  the  subject-matter  of  the  agree- 
ment and  the  situation  of  the  parties  gives  a  clear  presenta- 
tion of  the  evident  design  and  intention  of  the  parties,  the 
use  of  this  symbol  would  import  no  other  matters  of  adjust- 
ment than  those  similar  in  their  nature  to  what  were  named. 
Thus,  in  the  example  given,  the  use  of  the  sign  "etc."  in  this 
way  should  be  deemed  to  have  reference  only  to  such  matters 
as  bore  some  relation  to  the  current  of  accrued  earnings  and 
liabilities  of  the  premises,  and  which  obviously  had  to  be  in 
some  way  adjusted  between  seller  and  ])urcliaser.*^~ 

§  120.  Contemporaneous  writings.  When  two  or  more 
written  instruments  are  executed  contemporaneously,  each. 
relating  to  the  same  subject-matter,  and  the  one  referring 
to  the  other,  the  presumption  is  that  they  evidence  but  a 
single  contract,^^  and  the  several  instruments  should  be  con- 

87  Lathers  v.  Keogh,  109  N.  Y.  Canterberry  v.  Miller.  76  111.  355; 
583.  Held,  in  this  case,  that  a  tax  Pillow  v.  Brown,  26  Ark.  240; 
was  not  analogous.  Smith  v.  Turpin,  20  Ohio  St.  478; 

88  Byrne  v.  Marshall,  44  Ala.  355;  Babbitt  v.  Globe  Ins.  Co.,  66  N.  C. 


IGO  CONSTRUCTION  OF  LAND  CONTRACTS. 

stnied  together  in  dcterniining  the  meaning  of  the  parties 
thereto,s°  and  to  complete  the  memorandum  required  by  the 
statute.^®  This  would  follow  as  a  matter  of  course  in  case 
of  duplicate  agreements  mutually  signed  and  interchangeably 
delivered,  but  the  principle  has  been  extended  to  cover  all 
the  writings  and  x)apers  employed  bj'  the  parties  in  conduct- 
ing their  negotiations;  and  even  though  some  of  the  writings 
are  unsigned,  if  it  clearly  appears  that  their  matter  has  been 
recognized  and  adopted  by  the  parties,  they  may  still  be  con- 
sidered with  the  others  and  taken  as  part  of  the  contract.^^ 
In  this  event,  however,  there  must  be  a  direct  reference  to  the 
unsigned  writings,  so  that,  in  effect,  they  shall  become  incor- 
porated into  and  form  a  part  of  the  papers  bearing  the  signa- 
tures, and  the  reference  must  be  so  clear  as  to  prevent  any 
other  paper  being  substituted  for  them.  Where  a  writing  is 
thus  referred  to  it  may  be  identified  by  parol,'^-  but  a  paper 
to  which  no  reference  has  been  made  cannot  be  introduced 
to  supply  a  term  or  cure  any  other  defect.^^ 

As  a  rule,  to  justify  the  construction  of  two  separate  writ- 
ings as  constituting  but  one  transaction,  there  must  be  identity 
of  parties  and  date.^*  They  must  appear  on  their  face  to  have 
been  simultaneous  or  practically  so,  and  the  question  of  time 
is  usually  considered  material.  This  rule  is  not  unyielding, 
however,  and  there  are  cases  of  separate  writings  or  instru- 
ments that  may  be  so  construed  even  though  executed  at 
different  times.  Thus,  where  there  has  been  a  special  agree- 
ment, and  a  subsequent  agreement  is  made  the  effect  of 
which  is  not  to  create  an  absolute  independent  contract,  but 
simply  a  modification  of  the  original,  to  which  reference  is 
made,  both  should  be  taken  together  as  one  instrument  and 

71;    Morss  v.   Salisbury,   48  N.  Y.  Portsmouth,  46  N.  H.  249;  Norton 

636;    Stow  v.  Tifft,   15   Johns.    (N.  v.  Kearney,  10  Wis.  443. 

Y.)  458;  King  v.  King,  7  Mass.  499;  so  Lee  v.  Butler,  167  Mass.  426. 

Doe  V.  Bernard,  15  Miss.  319;  Nor-  oi  Johnston  v.  Buck,  35  N.  J.  L. 

ton  V.  Kearney,  10  Wis.  443.  338. 

89  Morss  V.   Salisbury,   48   N.   Y.  »-'  Beckwith  v.  Talbot,  95   U.   S. 

636;  Rogers  v.  Kneeland,  10  Wend.  289. 

(N.  Y.)   218;  Strong  v.  Barnes,  11  03  Freeport  v.   Bartol,   3   Greenl. 

Vt.   221;    Sewall  v.   Henry,   9  Ala.  (Me.)  340;  Morton  v.  Dean,  13  Met. 

24;   Stacey  v.  Randall,  17  111.  467;  (Mass.)   385;   Ridgway  v.  Ingram, 

Wallace  v.  Beauchamp,     15     Tex.  50  Ind.  145. 

303;    Salmon  Falls  Mfg.     Co.     v,  »*  Craig  v.  Wells,  11  N.  Y.  315. 


CONSTRUCTION  OF  LAND  CONTRACTS.  IGl 

be  construed  accordiu*,'  to  the  intent  of  the  {(urties  as  collected 
from  the  whole  contract/-*'^ 

Nor  is  it  absolutely  necessary  dial  the  instruments  should 
in  terms  refer  to  each  other,  if  in  point  of  fact  they  are  parts 
of  a  siuj^le  transaction.  But  until  it  appears  that  they  are 
such,  either  from  the  writings  themselves  or  by  comj)etent 
extrinsic  evidence,  they  cannot  be  brought  within  the  oper- 
ation of  the  rule.  That  they  are  made  between  the  same 
parties  and  have  the  same  date  are  significant  facts;  yet, 
where  there  is  no  reference  in  either  to  the  other,  it  is  not 
inferable  from  these  facts  alone  that  they  are  parts  of  a  single 
transaction.  It  may  be  that  the  same  parties  should  have 
several  transactions  in  one  day,  and  of  the  same  general 
nature,  and  yet  each  one  should  be  distinct  and  wholly  inde- 
pendent of  the  other.  It  is  therefore  of  vital  importance  not 
only  that  there  shall  be  identity  of  parties  and  correspondence 
of  time,  but  that  the  writings  plainly  disclose  their  relation  to 
the  same  subject-matter.  Where  these  features  do  not  com- 
bine, and  the  writings  do  not  refer  to  each  other,  neither  can 
in  an}'  way  be  made  to  qualify  or  affect  the  legal  construction 
of  the  other,  and  parol  evidence  will  be  inadmissible  to  vary 
or  control  their  legal  effect  or  operation.^^ 

§  121.  Continued — When  variant  from  each  other.  Where 
two  instruments,  executed  by  the  same  parties  at  the  same 
time  and  in  relation  to  the  same  subject-matter,  are  construed 
together  as  a  part  of  the  same  transaction,  one  cannot  be 
regarded  as  more  expressive  of  the  intent  of  the  parties  than 

05  Van  Hagen  v.  Van  Rensselaer,  Y.)  130.  It  has  been  held  that  the 
18  Johns.  (N.  Y.)  420;  Adams  v.  general  rule  that  collateral  papers 
Hill,  16  Me.  215.  Letters  from  a  adduced  to  supply  the  defect  of 
principal  to  his  agent  may  afford  signature  of  a  written  agreement 
a  "memorandum  or  note"  of  a  con-  under  the  statute  of  frauds  should 
tract  of  sale  effected  through  the  on  their  face  sufficiently  demon- 
agent,  sufficient  under  the  statute  strate  their  reference  to  such 
of  frauds,  where  the  letters  refer  agreement  without  the  aid  of  parol 
to  and  connect  with  each  other,  proof  is  subject  to  some  excep- 
and,  taken  as  a  whole,  show  tions,  and  that  parol  proof,  if  clear 
clearly  the  fact  and  terms  of  such  and  satisfactory,  may  be  received 
sale,  and  a  sufficient  description  of  to  identify  the  agreement  referred 
the  land.  Lee  v.  Cherry,  85  Tenn.  to  in  such  collateral  papers.  Beck- 
707.  with  V.  Talbot,  95  U.  S.  289. 

06  Cornell  v.  Todd,  2  Denio   (N. 

11 


163  CONSTRUCTION  OF  LAND  CONTRACTS. 

the  other.  If  iu  respect  to  any  particular  clause  such  instru- 
ments vary  iu  their  lanjjjuage,  the  true  intent  is  to  be  ascer- 
tained by  an  examination  of  the  terms  and  provisions  which 
are  identical  in  each  and  the  objects  and  purposes  contem- 
plated by  the  parties  thus  determined.^"^  Particularly  is  this 
true  ^vhere  the  instruments  were  intended  to  be  duplicates, 
and  to  express  the  same  terms  and  employ  the  same  language, 
r.oth  are  to  be  regarded  as  originals,  and  each  is  entitled  to 
equal  faith  and  credit.  The  want  of  accuracy  in  one  is  not 
proven  by  the  mere  production  of  the  other. 

§  122.  Unintelligible  expressions.  It  will  sometimes  hap- 
pen that,  even  under  the  most  favorable  construction,  words 
and  phrases  still  remain  unintelligible;  and  where  no  mean- 
ing can  be  given  to  a  word  from  the  connection  in  which 
it  is  used,  nor  consistently  with  express  provisions,  nor  upon 
a  full  examination  of  the  whole  instrument,  such  word  or 
term  may  be  treated  as  surplusage  and  disregarded.'^s 

Clerical  omissions,  when  they  clearly  appear,  although  by 
strict  construction  creating  unintelligible  or  meaningless 
expressions,  are  usually  disregarded  when  the  general  intent 
is  manifest  from  the  whole  instrument  taken  in  connection 
with  attendant  circumstances  or  viewed  in  the  light  of  other 
transactions  of  a  similar  nature.^^ 

§  123.  Printed  blanks.  The  use  of  what  is  popularly  termed 
"printed  blanks"  is  now  w^ell-nigh  universal,  their  labor-saving 
qualities  commending  them  to  the  indolent  and  their  supposed 
legal  etficacy  to  the  ignorant.  To  the  amateur  conveyancer 
they  are  a  priceless  boon,  and  even  the  skilled  draftsman 
gladly  avails  himself  of  their  assistance.  Ordinarily,  every 
part  of  an  instrument  is  entitled  to  equal  consideration,  and 
is  to  be  taken  as  equally  expressive  of  intention;  yet  in  the 
construction  of  this  class  of  writings  it  is  an  established  rule 
in  the  interpretation  of  the  language  employed,  that  greater 

07  Munson  v.  Osborn,  10  111.  App.  word  "dollars"  in  an  offer  to  sell 

508;    Morss  v.  Salisbury,  48  N.  Y.  "forty   acres   of   land   for   ten   per 

636.  acre,"  which  was  accepted,  the  pur- 

98  Tucker  V.  Meeks,  2  Sweeny  (N.  chaser  agreeing  to  pay  "what  you 
Y.)  736;  Decorah  v.  Kesselmeier,  ask — four  hundred  dollars" — there 
45  Iowa  166.  being  no  possibility  of  doubt  as  to 

99  Thus,  a  contract  is  not  invalid  its  meaning.  N.  W.  Iron  Co.  v. 
because    of    the    omission    of    the  Meade,  21  Wis.  474. 


CONSTRUCTION  OF  LAND  CONTRACTS.  163 

woij,'lit  should  bo  given  to  tlie  written  than  to  the  printed 
words  wliere  they  lead  different  ways  and  tend  to  contrary 
results.'  The  lanjiuage  of  jtrinted  blanks  is  easily  assumed 
to  be  appropriate  without  careful  examination,  while  the 
written  'words  more  safely  and  more  nearly  indicate  the  inten- 
tion of  the  contractinj^  parlies;  and  for  this  reason  where 
parties,  in  attempting  to  reduce  their  agreement  to  form,  use 
a  blank  containing  a  jtrinted  paragrajth  which  is  entirely 
inconsistent  with  a  provision  wiittcn  in  the  blank,  and  it 
appears  that  by  inadvertence  the  blank  as  filled  is  signed  with- 
out erasing  the  pnnted  paragraj)h,  the  written  ytrovision  must 
control  and  will  be  taken  as  (*x[)ressing  the  real  contract.^ 

§  124.  Interlineations — Erasures.  Among  the  many  per- 
plexing questions  which  arise  upon  the  construction  of  written 
instruments  is  that  which  is  raised  by  the  insertion  of  words 
interlined  upon  the  face  of  the  writing.  It  is  not  necessary, 
to  give  validity,  that  the  writing  should  be  regular  or  in 
properly-disposed  courses;  that  the  lines  should  be  straight, 
and  that  every  word  should  find  its  appropriate  place  in 
unbroken  continuity  of  sentences.  This  is,  of  course,  desir- 
able; and  there  are  not  wanting  authorities  w^iich  hold  that 
an  interlineation  is  presumably  an  unauthorized  alteration, 
and  that  the  burden  of  proof  is  upon  the  party  offering  the 
instrument  in  evidence  to  show  the  contrary.-'^  On  the  other 
hand,  there  are  cases  in  which  interlineations  have  been  held 
to  create  conditions  exactly  the  reverse.  The  true  rule,  and 
the  one  which  governs  in  all  such  cases,  would  seem  to  be 
this:  If  the  interlineation  is  in  itself  suspicious,  as,  if  it 
appears  to  be  contrary  to  the  probable  meaning  of  the  instru- 
ment as  it  stood  before  the  insertion  of  the  interlined  words; 
or  if  it  is  in  a  handwriting  diflerent  from  the  body  of  the 
instrument,  or  appears  to  have  been  written  with  different 
ink, — in  all  such  cases,  if  the  court  considers  the  interlinea- 
tion suspicious  on  its  face,  the  presumption  will  be  that  it  was 
an  unauthorized  alteration  after  execution.  On  the  other 
hand,  if  the  interlineation  appears  in  the  same  handwriting 

1  Clark  V.  Woodruff,  83  N.  Y.  518;  2  People  v.  Dulaney,  96  111.  503. 

Hill  V.  Miller,  76  N.  Y.  32;  Amer-  3  See  McAllister  v.  Avery.  17  111. 

lean   Ex.  Co.   v.   Pinckney,  29   111.  App.  568. 
392. 


1G4  CONSTRUCTION  OF  LAND  CONTRACTS. 

with  till'  orij^iiial  instrument,  and  bears  no  evidence  on  its 
face  of  having  been  made  subsequent  to  the  execution  of  such 
instrument,  and  especially  if  it  only  makes  clear  what  was 
the  evident  intention  of  the  parties,  the  law  will  presume 
that  it  was  made  in  good  faith  and  before  execution.^ 

The  foregoing  remarks  on  interlines  have  practically  the 
same  application  to  erasures,  substitutions  or  alterations  of 
any  kind.  An  erasure  or  other  alteration  of  any  material 
part  of  an  instrument,  after  execution,  avoids  it;  and  it  is 
for  the  jury  to  decide  whether  the  alteration  was  made  after 
delivery.^  But  the  construction  of  deeds  is  the  province  of 
the  court,  and  the  materiality  of  an  alteration  is  a  question  of 
construction;  hence,  whether  erasures  or  alterations  are 
material  or  not  is  a  question  of  law  to  be  decided  by  the 
court.^ 

§  125.  Proposals  and  offers — Options.  A  mere  proposal  or 
offer,  though  made  in  writing  and  signed  by  the  proponent, 
creates  no  obligation  on  the  part  of  the  person  making  the 
same,  unless  accepted  by  the  person  to  w^hom  the  same  is 
made  according  to  its  terms.  Being  made  without  considera- 
tion, and  not  possessing  the  essential  element  of  mutuality, 
the  party  making  an  offer  has  a  right  to  withdraw  it  any 
time  before  the  one  to  whom  it  is  made  accepts  it;'^  and  this, 
too,  notwithstanding  a  time  was  named  within  which  the 
offer  might  be  accepted.^  The  theory  of  the  proceeding  is 
that  it  is  merely  a  continuing  offer  which  may  be  retracted 
at  any  time.    But  where  the  person  so  proposing  allows  his 

4  Beaman  v.  Russell,  20  Vt.  205 ;  the  interlineation  was  made  prior 

Burnham  v.   Ayer,   35   N.   H.  351;  to  execution. 

Stoner  v.  Ellis,  6  Ind.  152;  Nichols  ^  Vanhorne  v.  Dorrence,  2  Dall. 

V.   Johnson,   10   Conn.    192;    Hunt-  (C.  Ct.)  304. 

ington  V.  Finch  &  Co.,  3  Ohio  St.  c  Steele  v.  Spencer,  1  Pet.  (Q.  S.) 

445;    Cox  v.   Palmer,   3  Fed.  Rep.  552. 

16.     In   this   case  there   appeared  ^  Conner   v.    Reneker,    25    S.    C. 

interlined  upon  the  face  of  a  mort-  514;    Perkins   v.    Hadsell,    50    111. 

gage  the  words  "block  19,"  without  216;   Richardson  v.  Hardwick,  106 

which  the  property  described  could  U.  S.  252;   Smith  v.  Reynolds,     3 

not  be  located.    The  interlineation  McCrary  (C.  Ct.)  157;  Coleman  v. 

was  in   the  handwriting     of     the  Applegarth,  68  Md.  21;   Gordon  v. 

draftsman,  who  had  not,  since  the  Darnell,  5  Colo.  304;   Bradford  v. 

time  of  execution,  had  the  instru-  Foster,  87  Tenn.  8. 

ment  in  his  possession.    Held,  that  »  School  Directors  v.  Trefethren, 


CONSTRUCTION  OF  LAND  CONTRACTS.  165 

offer  to  remain  open  until  accepted,  it  is  then  too  late  to 
recede." 

Where,  howevei',  the  luue  for  acceptance  is  not  limited,  the 
]trojK)Kili()ii  must  be  accepted  within  a  reasonable  time,  to  be 
determined  b.v  all  the  eii'cumstanccs  of  the  case.^^  If  the 
ojdion  is  ^Mven  for  a  valuable  consideration,  whether  adequate 
or  not,  it  cannot  ]»e  withdiawn  oi-  re\()ke<l  within  tlie  time 
tixed,  and  it  will  be  binding;  and  olilijiatorv  ujion  the  owner, 
or  his  assij^ns  with  notice,  until  it  expires  by  its  own  limita- 
tion." r.ut  a  unilateial  contract  or  offer,  in  wntin<;,  simply 
}iivin<;'  an  option  to  purchase  within  a  s])ecitied  time  for  a 
<;iven  price,  is  binding;  only  upon  the  party  who  si<j;ns  it,  and 
upon  kim  only  for  the  time  stipulated.  Time  is  of  the  very 
essence  of  such  an  ajji;reement ;  and  when  the  time  limited  luis 
expired  the  contract  is  at  an  end,  notwithstandinj;  a  nominal 
consideration  may  have  been  paid  to  the  owner  of  the  property 
for  the  j)rivilej?e  of  the  option.^^ 

There  is  a  marked  distinction  between  an  option  of  sale 
and  a  contract  for  sale,  although  such  distinction  is  fre- 
quently overlooked.  If  without  consideration  an  option  is  a 
mere  proposal  whicli  may  be  retracted  at  any  moment;  if 
given  for  a  consideration  it  amounts  to  nothing  more  than 
a  i)rivilege  to  purchase  at  a  certain  price  or  within  a  certain 
time.  It  is  not  a  sale;  it  is  not  even  an  agreement  for  a  sale; 
at  best  it  is  but  a  right  of  election  in  the  party  receiving 
same  to  exercise  a  pri^^lege,  and  only  when  that  privilege 
has  been  exercised  by  acceptance  does  it  become  a*contract 
to  sell.^3    If  based  upon  a  consideration  it  cannot  be  extended 

10   111.  App.   127;    Smith  v.   Reyn-  530;  Guyer  v.  Warren,  175  111.  328; 

olds,  3  McCrary  (C.  Ct.)  157;  Bos-  House  v.  Jackson,  24  Ore.  89;  Linn 

ton,  etc.,  R.  R.  Co.  v.  Bartlett,  3  v.    McLean,    80   Ala.   360;    Litz   v. 

Cush.     (Mass.)     224;     Larmon     v.  Goosling,  93  Ky.  185;  Bradford  v. 

Jordan,  56  111.  204.  Foster,  87  Tenn.  4. 

»  Perkins  v.  Hadsell,  50  111.  216;  i-*  Coleman  v.  Applegarth,  68  Md. 

Boston,  etc.,  R.  R.  Co.  v.  Bartlett,  21;    Barrett  v.    McAllister.    33    W. 

3  Cush.  (Mass.)  224;  Ide  v.  Leiser,  Va.  738;  Sterabridge  v.  Stembridge, 

10  Mont.  5;  Wall  v.  Ry.  Co.,  86  Wis.  87   Ky.   91;    Vassault  v.   Edwards, 

48.  43  Cal.  458;   Borst  v.  Simpson,  90 

if>  Larmon  v.  Jordan,  56  111.  204;  Ala.  374;  Steele  v.  Bond,  32  Minn. 

Hanly  v.  Watterson,  39  W.  Va.  214;  14;  Bostwick  v.  Hess,  80  111.  138. 

Kellow  V.  Jory,  141  Pa.  St.  144.  i^  Guyer  v.  Warren,  175  111.  328; 

11  Ross    V.    Parks,    93    Ala.    153;  Yerkes    v.    Richards,    153    Pa.    St 

Johnson   v.   Trippe,   33    Fed.   Rep.  646;  Wall  v.  Ry.  Co.,  86  Wis.  48. 


166  CONSTRUCTION  OF  LAND  CONTRACTS. 

beyond  the  time  limited  without  a  new  consideration,  and 
even  though  this  is  attempted  and  such  extension  is  evidenced 
by  a  writing-  it  is  still  malum  pactum  and  void.^'*  Such 
extension,  however,  though  void  as  an  option,  may  still  con- 
stitute a  valid  continuing  offer  of  sale,  which,  if  accepted 
before  retraction  with  a  tender  of  performance,  will  create 
a  contract  capable  of  specific  enforcement.^^ 

A  proposal,  to  be  effective,  must  be  unequivocal  and  clear. 
An  offer  must  be  fairly  deducible  from  the  writing  alleged 
to  be  a  proposal,  or  from  this  in  connection  with  other  writ- 
ings; and  mere  statements,  not  amounting  to  an  offer  or 
evincing  a  desire  to  sell,  cannot  be  construed  into  a  proposal. 
This  is  well  illustrated  in  the  case  of  one  who  writes  a  land- 
owner, inquiring  the  price  of  his  land  or  the  terms  upon  which 
he  will  sell  it.  If,  in  response  to  such  letter,  the  land-owner 
names  a  price  or  even  specifies  terms,  this  will  not  be  equiva- 
lent to  a  proposal  to  sell  the  land.  The  mere  statement  of  the 
price  at  which  property  is  held  cannot  be  understood  as  an 
offer  to  sell ;  for  the  seller  may  desire  to  choose  the  purchaser, 
and  may  not  be  willing  to  part  with  his  property  to  any  one 
who  ofl'ers  his  price.i° 

§  126.  Continued — Option  in  lease.  A  covenant  in  a  lease 
giving  the  right  to  purchase  the  premises  on  specified  terms  is 
a  continuing  offer  to  sell,  which,  when  accepted,  constitutes 
a  contract  of  sale.  The  proposition,  unless  otherwise  quali- 
fied, extends  through  the  whole  period  of  the  demise,  and  if 
the  lease  is  under  seal  must  be  regarded  as  made  upon  a 
sufficient  consideration,  and  therefore  one  from  which  the 
vendor  is  not  at  liberty  to  recede.^ '^  If  the  lease  is  not  under 
seal  the  contract,  if  strictly  interpreted,  cannot  be  said  to  be 
mutual.  The  earlier  cases,  both  in  England  and  America, 
hold  that  want  of  mutuality  of  obligation  and  remedy  is  a 
bar  to  specific  performance  j^^    but  modern  authorities  have 

Hide  v.  Leiser,     10     Mont.    5;  see  Coleman  v.  Applegarth,  68  Md. 

Bradford    v.    Foster,    87    Tenn.    4;  21. 

De  Rutte  v.  Muldrow,  16  Cal.  505;  le  Knight  v.  Cooley,  34  Iowa  218. 

Gordon  v.  Darnell,  5  Colo.  304.  i^  Willard  v.  Taylor,  8  Wall.  (U. 

15  Ide  V.  Leiser,  10  Mont.  5;   in  S.)  557;  Guyer  v.  Warren,  175  111. 

this  case   the   general   doctrine  of  328;  O'Brien  v.  Borland,  166  Mass. 

options  and   contracts   is   very  lu-  481. 

cidly  and  learnedly  discussed.  And  is  Parkhurst  v.  Van  Cortlandt,  1 


CONSTRUCTION  OF  LAND  CONTRACTS.        lOT 

narrowed  this  doctrine  down  to  cases  in  which  there  is  u«j 
other  consideration.  An  ()i)tional  aj^reenient  to  convey,  witli- 
out  any  covenant  or  obligation  lo  piirdiase,  and  witliout 
mutuality  of  remedy,  will  now  be  enforced  in  equity  if  it  is 
made  uj)on  proper  consideration  or  forms  part  of  a  lease  or 
oilier  contract  between  the  parties  that  may  be  the  true  con- 
sideration Cor  it.''  Thus,  it  is  said  that  in  taking  a  lease  a 
tenant  may  be  willing  to  j)ay  a  hij^h  rent  for  a  number  of 
years,  provided  the  landlord  will  j^ive  him  an  optional  ri},dit 
to  purchase  at  a  fixed  price;  and  it  is  to  be  presumed  that 
the  landloi-d  would  not  aji^ree  to  such  a  concession  unless  he 
had  a  consideration  in  the  lease.  Any  sutlicient  consideration 
would  make  such  unilateral  contract  bindin<>  in  equity,^"  and 
the  simple  reservation  of  rent  is  enou<;h.-i  An  option  f^iven 
in  a  lease  should,  however,  comply  with  the  general  rules 
relative  to  agreements  for  the  sale  of  land,  and  if  indefinite 
or  uncertain  will  be  insufficient  as  a  ground  for  specific  per- 
formance.-- 

An  oj)tion  of  this  character  can  be  regarded  in  no  higher 
light  than  a  niei'e  privilege  of  purchase.  It  is  binding  upon 
the  lessor  and  available  by  the  lessee  for  the  full  period  of  the 
option.  Beyond  this  it  confers  no  rights  on  the  lessee,  creates 
no  estate  in  him  other  than  that  acquired  under  the  lease, 
and  unless  accepted  expires  with  his  term  or  by  such  other 
limitation  as  may  be  placed  upon  it.--**  It  has  been  held  that 
a  lessee  with  such  an  option,  although  the  election  to  ])uichas" 
rests  solely  with  him,  has  thereby  such  an  equitable  estate 

Johns.  Ch.   (N.  Y.)   282;   Smith  v.  21  Gustin  v.    School   District,   94 

McVeigh,  11  N.  J.  Eq.  239.  Mich.   502;    Hayes  v.   O'Brien,   149 

1"  Backhouse  v.  Mohun,  3  Johns.  111.  403;  Hall  v.  Center,  40  Cal.  63; 

(N.  Y.)   434;  Hawralty  v.  Warren,  House  v.  Jackson,  24  Ore.  89;  Her- 

18  N.  J.  Eq.  124.     Equity  will  de-  man  v.  Babcock,  103  Ind.  461. 

cree  specific  performance  of  a  cov-  2^  Thus,  an  agreement  in  a  lease 

enant   in   a   lease   which   provides  that  "if  the  premises  are  for  sale 

that  the  lessee  shall  have  the  priv-  at  any  time  the  lessee  shall  have 

ilege    of    purchasing    for    a    fixed  the  refusal  of  them"  is  too  indef- 

price  on  or  before  the  expiration  inite  to   be    enforced    specifically, 

of   the  term.     Hall   v.   Center,   40  Fogg  v.  Price.  145  Mass.  513. 

Cal.    63;    and    see    McLaughlin   v.  -'.•i  Bras  v.  Sheffield,  49  Kan.  702; 

Perry,  35  Md.  352.  Gustin  v.  School  District.  49  Mich. 

20  Hawralty  v.  Warren,  18  N.  J.  502;  Sutherland  v.  Parkins,  75  HI. 

Eq.  124.  338. 


168  CONSTRUCTION  OF  LAND  CONTRACTS. 

in  the  laud  iiudei-  the  coutracl  of  optional  purchase  as  maj 
be  transmitted  hy  him,-^  but  this  view  of  the  relation  does  not 
seem  to  rest  on  substantial  jj;rounds  and  is  opposed  to  the 
generally  received  principles  which  govern  this  branch  of  the 
law.25 

§  127.  Acceptance.  It  may  be  stated  generally  that  an 
oral  acceptance  of  a  mere  proposal  or  offer  in  writing  will 
not  satisfy  the  requirements  of  the  statute  of  frauds,  which 
is  explicit  in  its  provisions  that  the  entire  contract  shall  be 
evidenced  by  or  deducible  from  writings.  It  is  necessary, 
therefore,  to  create  a  valid  obligation,  that  the  acceptance 
shall  itself  be  in  writing,  and  unqualified  or  without  variance 
of  any  kind  between  it  and  the  proposal,  so  that  it  shall 
clearly  appear  that  there  has  been  a  full  accession  on  both 
sides  to  one  and  the  same  set  of  terms.^^  A  conditional 
acceptance  will  not  create  a  contract  that  can  be  specifically 
enforced  and  amounts  to  a  practical  rejection  of  the  offer.^^ 

But  this  rule  is  not  without  apparent  exceptions,  and  cir- 
cumstances will  sometimes  be  pennitted  to  operate  as  an 
acceptance  where  fraud  might  be  perpetrated  or  injustice 
result  from  a  strict  adherence  to  the  rule.  Thus,  where  offers 
are  made  or  options  given  for  the  purchase  of  land,  and  certain 
conditions  are  imposed  upon  the  party  to  whom  the  option 
is  given,  as  that  he  shall  move  upon  or  improve  the  property, 
pay  taxes,  etc.,  upon  the  performance  of  which  the  owner 
agrees  to  convey  on  payment  of  a  stipulated  price,  a  valid 
acceptance  may  be  created  by  the  performance  of  the  condi- 
tions so  imposed.-^  In  such  cases  the  pa^Tnent  of  the  purchase 
price  is,  of  course,  one  of  the  conditions;  and  while  there  is 
no  agreement  expressed  in  the  writing  by  the  purchaser  to  pay 
such  price,  the  performance  of  the  other  conditions  annexed 
and  the  tender  of  the  purchase  money  at  or  within  the  time 
stipulated  will  constitute  a  sufficient  consideration  to  make 
the  agreement  binding  upon  the  vendor.^^  Prior  to  the  acts 
of  acceptance,  as  the  performance   of  conditions,  etc.,  the 

24  Kerr  v.  Day,  14  Pa.  St.  112.  27  Egger  v.  Nesbitt,  122  Mo.  667. 

25  See  Sutherland  v.  Parkins,  75  2s  Mix  v.  Baldiic,  78  111.  215;  Per- 
111.  338.  kins  v.  Hadsell,  50  111.  216. 

20  Lang  V.  McLaughlin,  14  Minn.        29  Mix  v.  Balduc,  78  111.  215. 
72;    Bruner   v.    Wheaton,   46    Mo. 
363. 


CONSTRUCTION  OF  LAND  CONTRACTS.  109 

vendor  mi\y  withdraw  Lis  oiler,  for  up  to  that  time  there  is 
no  consideration  to  support  the  aj;reenient;  but  if  he  allows 
his  offer  to  remain  open  until  the  vendee  has  accepted  it  by 
doing  all  that  he  is  required  to  do  by  its  terms,  it  is  then  too 
late  to  recede.'^^ 

It  is  sometimes  urj^ed,  in  cases  of  this  kind,  as  an  excuse 
for  non-performance  by  the  vendor,  that  the  vendee,  even  by 
enterinji:  upon  the  land,  incurs  no  oliligation  that  the  vendor 
could  enforce,  and  for  that  reason  the  ajireemcnt  is  not  bind- 
ing for  want  of  mutuality.     This  is  undoubtedly  a  true  con- 
struction of  the  instrument;  but  if  the  vendee  does  not  choose 
to  avail  himself  of  this  privilege  and  does  perform  all  that  is 
necessary  to  entitle  him  to  the  land,  it  would  be  inequitable 
to  permit  the  vendor  to  refuse  compliance  with  his  ])romise 
on  the  ground  that  the  vendee  was  not  bound  by  contract  to 
do  the  same.    The  acts  having  been  induced  by  the  unrevoked 
promise  of  the  vendor,  equity  will  not  permit  him  to  plead 
want  of  mutuant}'  or  consideration.    Indeed,  neither  of  these 
elements  can  properly  be  said  to  be  wanting;  for  the  mutual- 
ity and  consideration  in  such  a  case  consist  in  the  vendee's 
having  actually  done,  upon  the  promise  of  the  other  party, 
what  he  required  to  have  done,  and  it  is  immaterial  that  it 
was  done  without  having  entered  into  a  previous  undertaking 
to  do  it.3i 

After  the  time  has  passed  within  which  one  is  allowed  the 
privilege  of  electing  to  purchase  land  on  certain  terms,  a 
tender  and  ott'er  to  perform  comes  too  late.^- 

The  written  acceptance  of  a  verbal  offer,  not  containing  its 
terms,  is  within  the  statute  of  frauds  and  inoperative  against 
the  person  making  it;  and  notwithstanding  that  such  oiler  is 
afterwards  reduced  to  writing  in  the  form  of  a  contract  by 
the  i)arty  making  it  and  off"ered  to  the  party  to  whom  it  is 
made  to  sign,  the  latter  may  refuse  and  will  not  be  bound 
by  it.33 

In  the  case  of  bilateral  contracts,  which  contain  mutual 
obligations  and  reciprocal  promises,  such  as  are  ordinarily 
inserted  in  contracts  of  sale,  if  the  writing  fully  expresses  the 

30  Perkins  V.  Hadsell,  50  111.  216;  32  Longfellow  v.  Moore,  102  111. 
Coleman  v.  Applegarth,  68  Md.  21.    289. 

31  Perkins  v.  Hadsell,  50  111.  216.       a,!  Washington  Ice  Co.  v.  Webster, 

62  Me.  341. 


170  CONSTRUCTION  OF  LAND  CONTRACTS. 

agreement  the  li^liis  of  the  parties  are  fixed  by  it.  It  is 
oiistoinai'j  aud  iJiopcr  to  have  such  contracts  signed  by  both 
parties,  and  a  mutual  acceptance  thereof  thus  signified  in 
writing;  yet  it  is  well  settled  that  the  signature  of  one  party 
only  is  sufficient,  jjrovided  he  be  the  one  who  is  sought  to  be 
charged  thereby;  while  in  some  states  the  rule  obtains  that 
the  acceptance  by  one  party  of  a  contract  for  sale  executed 
only  by  the  other  binds  the  accepting  party  as  well,  and  that 
the  instrument  is  regarded  as  being  as  much  the  written  agree- 
ment of  the  latter  as  the  former.^^ 

§  128.  Operation  and  effect.  The  ordinary  effect  of  an  agree- 
ment to  convey  imports  nothing  more  than  an  executory 
promise,  and  the  operation  of  the  instrument  will  not  usually 
be  extended  beyond  this ;  yet  it  will  often  happen  that  parties, 
through  ignorance  of  the  legal  effect  of  w^ords,  inadvertence  or 
mistake,  make  use  of  language  which,  standing  alone,  indi- 
cates a  present  grant  rather  than  a  mere  agreement  for  some 
future  action. 

The  employment  of  the  words  "grant,  bargain  and  sell,"  or 
"do  sell,"  or  "by  these  presents  do  sell  and  convey,"  or  words 
of  like  character,  all  import  a  present  grant,^^  and  their  use 
is  by  no  means  unfrequent  in  agreements  for  conveyance.  But, 
notwithstanding  the  contract  contains  words  of  conveyance 
in  prccsenti,  still  if  from  the  whole  instrument  it  is  manifest 
that  further  conveyances  were  contemplated  by  the  parties, 
it  will  be  considered  an  agreement  to  convey  and  not  a  con- 
veyance.3^  In  detennining  whether  an  instrument  is  an  imme- 
diate conveyance  or  only  an  executory  contract,  the  intention 
of  the  parties  must  be  sought  for  in  every  part  of  the  instru- 
ment. If  it  contains  words  of  present  assurance,  these  words 
afford  a  presumption  that  an  executed  conveyance  was  in- 
tended. But  this  presumption  is  not  conclusive;  it  may  be 
overcome  by  the  presence  of  other  words  which  contemplate 
a  future  conveyance.^'^  Intention  is  so  imperative  in  the  con- 
struction of  grants  that  the  strongest  words  of  conveyance  in 

34  See  Lowber  v.  Connit,  36  Wis.  (N.   Y.)    26;    Ogden  v.  Brown,   33 

176;  Hubbard  v.  Marshall,  50  Wis.  Pa.  St.  247;    Broadwell  v.  Raines, 

322.  34  La.  Ann.  677. 

3n  Carver  v.  McNully,  39  Pa.  St.  37  Williams  v.  Bently,  27  Pa.  St. 

484;  Johnson  v.  Filson,  118  111.  219.  301. 

38  Jackson  v.  Moncriet,  5  Wend. 


CONSTRUCTION  OF  LAND  CONTRACTS. 


171 


tlio  iHVSciit  tense  liave  been  Iield  inoperative  to  pass  the  estate 
if  other  pails  of  tlie  writing;  evince  a  contrary  intention  or 
tend  to  show  tliat  the  aji;reement  itself  was  not  designed  to 
pass  title.'''^ 

If  the  instrument  is  called  hy  the  parties  an  agreement,  this 
is  a  circumstance  of  importance;  for  in  popular  understanding 
there  is  a  distinction  between  an  agreement  and  a  deed,  the 
former  being  regarded  as  preparatory  to  the  latter;  and  gen- 
erally, if  by  the  terms  of  the  contract  any  material  act  remains 
to  be  done,  eltect  will  be  given  to  the  instrument  only  as  an 
agreement  to  sell. 

On  the  other  hand,  courts  have  no  right  to  do  violence  to  the 
express  terms  of  an  instrument,  and,  where  such  instrument 
contains  the  ordinary  and  technical  words  to  jjass  title, 
cannot  entirely  disregard  them.  If  there  is  nothing  in  the 
instrument  to  limit  or  qualify  the  effect  of  apt  words  of  con- 
veyance, notwithstanding  it  may  provide  for  a  conveyance 
in  the  future,  the  writing  may  still  have  effect  as  a  present 
conveyance,  and  the  agreement  to  make  a  deed  at  a  future  day 
be  regarded  as  simply  equivalent  to  a  covenant  for  further 
assurance.2^ 

It  would  seem,  therefore,  that,  in  the  determination  of  the 
question  as  to  whether  an  informal  instrument  shall  be  con- 
strued as  a   conveyance  or  only  an  agreement  to  sell,  the 


38  Ogden  V.  Brown.  33  Pa.  St. 
247;  Jackson  v.  Moncriet,  5  Wend. 
(N.  Y.)  26.  A.  placed  B.  in  pos- 
session of  a  plantation  and  certain 
personal  property  thereon,  under 
an  agreement  which  stated,  "I 
have  this  day  bargained,  sold  and 
delivered  to"  B.  the  plantation  and 
articles  of  personal  property 
enumerated.  Held,  that  the  con- 
tract was  evidence,  not  of  a  sale, 
but  of  an  agreement  to  sell. 
Broadwell  v.  Raines,  34  La.  Ann. 
677.  The  following  writing: 
"August  20,  1850.  I  do  hereby 
agree  that  J.  P.  shall  have  the  land 
which  he  is  in  possession  of  now 
for  the  labor  he  done  for  me  over 
age;  and  this  shall  be  his  receipt 


for  all  my  rights  and  claims 
against  the  land.  [Signed]  D.  P." 
— does  not  convey  the  absolute  title 
to  the  land  for  want  of  words  of 
limitation,  but  is  merely  a  receipt 
for  the  purchase  money  of  the 
land.  Such  writing,  however,  con- 
stitues  an  agi'eement  to  convey 
sufficient  for  equity  to  execute,  and 
is  not  within  the  statute  of  frauds. 
Phillips  V.  Swank,  120  Pa.  St.  76. 

•■»>  So  held  in  Johnson  v.  Filson, 
118  111.  219,  where  a  written  instru- 
ment from  a  father  to  his  son  re- 
cited, among  other  things,  that 
"I,  W.  F.,  of,  etc.,  have  this  day 
bargained  and  do  grant,  bargain, 
sell  and  confirm  unto  the  said," 
etc.,  naming  the  son  and  describ- 


17^        CONSTRUCTION  OF  LAND  CONTRACTS. 

primary  rule  is  the  evident  intention  of  the  parties  derived 
from  the  instrument  itself,  and,  when  that  is  doubtful,  from 
the  circumstances  attending  its  execution.^o  Technical  words 
of  conveyance  are  not  necessary  to  constitute  an  executed 
contract,  neither  does  their  presence  necessarily  indicate  one. 
Notwithstanding  technical  words  of  present  grant  are  used, 
yet,  if  by  reason  of  something  further  to  be  done,  or  from  the 
tenor  of  the  whole  instrument,  the  design  of  the  parties  is 
manifested  that  the  contract  is  executory  merely,  it  will  be 
so  construed. 

§  129.  Recitals.  The  recitals  or  preamble  contained  in  or 
prefixed  to  an  agreement  do  not  of  themselves  have  any  obli- 
gatory force,  but  they  may  be  referred  to  in  the  operative 
part  of  the  instrument  in  such  a  way  as  to  show  that  it  was 
designed  they  should  form  a  part  of  it;'*^  and  where  the  words 
in  the  operative  part  of  the  instrument  are  of  doubtful  mean- 
ing, the  recitals  preceding  the  same  may  be  used  as  a  test  to 
discover  the  intention  of  the  parties  and  fix  the  true  meaning 
of  the  words.  But  when  the  words  in  the  operative  part  are 
clear  and  unambiguous  they  cannot  be  controlled  by  the 
recitals.^2 

§  130,  Contracts  for  repurchase.  Conveyances  of  land  abso- 
lute in  form  are  frequently  construed,  in  the  light  of  attendant 
circumstances,  as  mortgages  in  fact,  and  effect  is  given  to 
them  as  such.  The  questions  arising  under  such  conveyances 
are  numerous,  and  decisions  construing  them  have  been  multi- 
plied to  an  almost  indefinite  extent.  It  is  not  proposed  in  this 
connection  to  examine  the  operation  or  effect  of  such  convey- 
ances except  as  regards  their  availability  as  contracts  for 
repurchase.  Contracts  made  contemporaneously  with  absolute 
conveyances  are  sometimes  strong  evidence  tending  to  show 
that  such  conveyances  are  intended  to  be  mortgages;  and 
the  same  is  true  of  stipulations  inserted  in  the  instrument 
reserving  a  right  to  repurchase,  or  covenanting  to  reconvey.'*^ 

ing  the  land,  for  the  sum  of  $600  4i  Trower  v.  Elder,  77  111.  452. 

in  hand  paid,  and  then  bound  the  42  Walker  v.  Tucker,  70  111.  527. 

father  in  a  penal  sum  to  make  the  43  Peterson    v.  Clark,   15    Johns, 

son,    by    the    time    mentioned,    a  (N.  Y.)  205;  Hanford  v.  Blessing, 

good  and  suflBcient  warranty  deed.  80  111.  188. 
40  Bortz  V.  Borte,  48  Pa.  St.  382. 


CONSTRUCTION  OF  LAND  CONTRACTS.  17b 

But  there  is  uo  positive  rule  that  the  covenaut  to  reconvey 
shall  be  regarded  either  in  law  or  equity  as  a  defeasance.  The 
owner  of  lands  may  be  willing  to  sell  at  the  price  agreed  upon, 
and  the  purchaser  may  also  be  willing  to  give  the  vendor  the 
right  to  repurchase  upon  specified  terms;  and  where  it  appears 
that  the  parties  really  intend  an  absolute  sale,  and  a  contract 
allowing  the  vendor  to  rei)urchase,  such  intention  must  control. 
Such  a  contract  is  not  opposed  to  public  policy,  nor  is  it  in 
any  sense  illegal.^* 

In  instruments  of  this  character  the  fact  that  there  is  no 
continuing  debt  is  a  strong  circumstance,  where  there  is  yny 
doubt,  to  show  that  it  is  a  contract  for  repurchase.*^ 

Where  sales  are  made  conditionally,  or  with  a  reservation 
of  a  right  in  the  vendor  to  repurchase,  he  must  exercise 
promptness  and  j)recision  on  his  part  in  the  assertion  of  his 
right,  or  it  will  be  lost,  especially  when  the  vendee  pays  a  fair 
value  for  the  property.*^  If  no  time  is  fixed  or  expressed  in 
which  such  right  shall  be  exercised,  it  must  be  performed, 
or  an  offer  made  to  perform,  within  a  reasonable  time.*^  A 
long  delay  in  offering  to  repurchase  may  be  excused  by  and 
with  the  consent  and  approbation  of  the  vendee;  but  such 
assent  terminates  with  his  death,  and  the  right  must  be  exer- 
cised within  a  reasonable  time  thereafter.^^ 

A  mortgagor  and  a  mortgagee  may,  at  any  time  after  the 
creation  of  a  mortgage  and  before  foreclosure,  make  any  agree- 
ment concerning  the  estate  they  please,  and  the  mortgagee 
may  become  the  purchaser  of  the  equity  of  redemption.  All 
such  transactions,  however,  are  regarded  with  jealousy  by 
courts  of  equity;  and  as  a  party  is  never  allowed  to  take  from 
his  debtor  by  any  form  of  contract  his  right  to  redeem  prop- 

44  Hanford    v.    Blessing,    80    111.  depreciate  in  value  or  be  injured 

188;  Henly  v.  Hotaling,  41  Cal.  22;  or   destroyed,    he   may   decline   to 

Glover  v.  Payn,  19  Wend.  (N.  Y.)  repurchase,  and  permit  the  loss  to 

518.  fall    exclusively    on     the     vendee. 

40  Phillips  V.  Hulsizer,   20  N.  J.  Such  being  the   relative  situation 

Eq.  308.  of  the  parties  to  the  contract  the 

40  The  reason  for  this  is  appar-  law    requires    promptness    on    the 

ent.    There  is  no  obligation  on  the  part  of  the  vendor.     Beck  v.  Blue, 

part  of  the  vendor  to  repurchase.  42  Ala.  32,  4  Kent  Com.  144. 

Should  the  property  appreciate  in  ■*- Beck  v.  Blue,  42  Ala.  32;  Lar- 

value,   he  may  exercise  his   right  mon  v.  Jordan,  56  111.  204. 

and   realize   the   profit;    should   it  48  Beck  v.  Blue,  42  Ala.  32. 


174  CONSTRUCTION  OF  LAND  CONTRACTS. 

erty  pledged,  they  will  be  sustained  only  when  they  are  in  all 
respects  fair  and  sui)ported  by  an  adequate  consideration. 
They  will  be  avoided  for  fraud,  actual  or  constructive,  or  for 
any  unconscionable  advantage  taken  by  the  mortgagee  in  pro- 
curing the  sale;  and  courts  will  examine  the  transaction  to 
see  that  it  is  a  fair  and  independent  proceeding,  entirely 
unconnected  with  the  original  contract  of  mortgage.^'^ 

§  131.  Bond  for  conveyance.  A  bond  for  title  is  not  distin- 
guishable in  its  ordinary  operation  and  elVect  from  a  simple 
agreement  for  the  same  purpose,  notwithstauding  it  is  con- 
ditioned under  a  penalty.  The  imposition  of  a  penalty  gives 
only  a  security  for  the  perforaiance  of  the  contract  according 
to  its  terms,  and  is  not  intended  as  an  option  to  the  obligor; 
nor  does  it  entitle  him  to  convey  or  pay  the  penalty.^*'  Like  a 
simple  contract,  it  is  evidence  only  of  an  agreement  of  the 
obligee  to  purchase  and  the  obligor  to  sell,  the  agreement  of 
one  party  being  a  consideration  for  that  of  the  other;  and  it 
is  not  material  that  the  obligation  of  one  party  is  secured  by 
bond,  and  that  the  other  is  not  thus  secured.^^ 

§  132.  The  description.  Probably  more  questions  arise  in 
the  interpretation  of  contracts  and  deeds  for  land  in  that  part 
technically  denominated  the  description  than  in  any  other  part 
of  the  instrument.  Uncertainty,  ambiguity  and  repugnance 
are  common  defects,  all  calling  for  a  construction  before  the 
instrument  can  be  given  effect.  In  the  West,  where  property 
can  usually  be  easily  and  accurately  described  by  the  well- 
known  terms  of  the  government  surveys  or  the  equally  familiar 
expressions  employed  in  the  jdatting  of  cities  and  towns,  ques- 
tions of  insufficient  or  faulty  description  are  less  frequent 
than  in  the  East;  yet  the  decisions  of  both  sections  are  hanno 
nious  in  declaring  the  general  rule  that  in  agreements  for  the 
sale  or  conveyance  of  land  the  property  is  sufficiently  identified 

49  Odell  V.  Montross,  68  N.  Y.  the  cause  comes  on  for  hearing, 
499;  Locke  v.  Palmer,  26  Ala.  312;  the  purchaser's  part  of  the  agree- 
Patterson  v.  Yeaton,  47  Me.  306;  ment  has  not  been  performed,  if 
Trull  V.  Skinner,  17  Pick.  (Mass.)  the  fulfillment  is  tendered  and  can 
213;  Mills  v.  Mills,  26  Conn.  213;  be  secured  by  the  same  decree 
Baugher  v.  Merryman,  32  Md.  185;  which  compels  specific  perform- 
Hyndman  v.  Hyndman,  19  Vt.  9.  ance  by  the  vendor.    Ewins  v.  Gor- 

50  Ewins  V.  Gordon,  49  N.  H.  444.    don,  49  N.  H.  444. 
Bi  Nor  is  it  material  that,  when 


CONSTRUCTION  OF  LAND  CONTRACTS. 


175 


if  so  describL'd  that  by  proof  aliunde  the  description  may  be 
fitted  to  the  hind/'-  Tliis  ruh%  however,  cannot  be  made  to 
embrace  descriptions  wliicli  do  not  properly  fall  within  it,  nor 
can  il   be  extended  l»y  implication.'''* 


•'■•-•  Peck  V.  Williams,  10  N.  Y.  509; 
Baldwin   v.   Shannon,   43   N.   J.   L. 
596;    Baucum    v.    George,    66    Ala. 
259;    Hall  v.  Davis,  36  N.  H.  569; 
Hotchkiss  V.  Barnes,  34  Conn.  27; 
Farmer   v.    Batts,    83    N.    C.    387; 
Terry  v.  Berry,  13  Nev.  514;   Cato 
V.   Stewart,  28  Ark.  146;    Clark  v. 
Powers,    45    111.    283.      As,    for    in- 
stance, "my  Lenoir  lands."    Thorn- 
burg  V.  Masten,  88  N.  C.  293.     The 
"Fleming  farm  on  French  creek," 
held  to  be  a  sufficiently  certain  de- 
scription.    Ross  V.  Baker,   72  Pa. 
St.  186.     "Lot  8,  sec.  19,  4,  N..  35, 
E."  was  held  not  uncertain  under 
the  government  system  of  surveys. 
Richards  v.  Snider,  11  Ore.  197.    A 
contract  for  sale  of  land  described 
as  "a  tract  of  three  acres  of  land, 
more  or  less,  situate  in  the  town- 
ship    aforesaid,"     together     with 
proof  that  the   purchaser  entered 
into  possession  of  a  certain  tract 
of  three  acres  under  the  contract, 
held,  in  ejectment,  to  be  sufficient 
to  take  the  case  out  of  the  statute 
of  frauds.     Troup  v.  Troup,  87  Pa. 
St.  149.    A  description  of  property 
as  "a  steam-mill  and  distillery  sit- 
uate in  the  county  of     Smith  and 
Elate   of   Tennessee,  near  the   vil- 
lage of  Rome,  in  civil  district  13, 
on  the   banks  of   the   Cumberland 
river,  supposed  to  contain  one  and 
one-half  acres  of  land,"  held,  to  be 
sufficient     under    the     statute    of 
frauds,   and   parol  evidence  to   be 
admissible  for  identification  of  the 
premises.    White  v.  Motley,  4  Bax- 
ter (Tenn.)  544.     All  the  vendor's 
"claim  or  title  to  property  bought  of 
A.  and  B.,  and  known  as  the  Gen- 
tle property,"  held  good  under  the 


statute  of  frauds.  Smith  v.  Free- 
man, 75  Ala.  285.  A  written  agree- 
ment by  A.  to  transfer  to  B.  a  lot 
of  land  near  Florence,  north  of  the 
fair  grounds,  containing  thirty-five 
acres,  more  or  less,  is  not  void  for 
uncertainty,  it  appearing  that  A. 
owned  but  one  such  lot  in  that  vi- 
cinity. O'Neil  V.  Seixas  (Ala.),  4 
South.  Rep.  745.  "A  house  and  lot 
or  land  situated  on  Amity  street, 
Lynn,  Mass.,"  was  held  sufficient, 
the  vendor  only  owning  one 
house  and  lot  of  land  on  the  street. 
Hurley  v.  Brown,  98  Mass.  545. 
But  specific  performance  has  often 
been  refused  of  contracts  contain- 
ing no  more  specific  designation. 
See  Hammer  v.  McEldowney,  46 
Pa.  St.  334;  King  v.  Ruckman,  5 
C.  E.  Green  (N.  J.)  316.  Indeed, 
the  case  of  Hurley  v.  Brown  may 
be  considered  as  stating  an  ad- 
vanced doctrine  and  at  variance 
with  well-established  rules  of  con- 
struction. 

••^  Thus,  a  contract  for  the  sale  of 
land  described  as  "sixty  acres 
Comida  and  Cove  bottom,  also  ten 
acres  hillside  woodland  adjoining 
the  Mitchell  tract,"  was  held  void 
on  its  face  for  uncertainty.  Meyer 
V.  Mitchell,  75  Ala.  475.  "Forty 
acres  off  the  Spring  Fork  end  of 
my  tract  of  one  hundred  and  forty- 
seven  acres  on  Beech  Fork  in  Cal- 
houn county"  was  held  too  indefi- 
nite to  be  enforced.  Westfall  v. 
Cottrills,  24  W.  Va.  763.  "Twenty 
acres  of  land,"  without  other  de- 
scription, held  void  for  uncer- 
tainty. Palmer  v.  Albee,  50  Iowa 
492.  A  contract  to  convey  "a  piece 
of  land  supposed  to  be  forty  acres" 


17C 


CONSTRUCTION  OF  LAND  CONTRACTS. 


In  construing  a  con>tract  or  deed,  the  description  in  which 
is  doubtful,  the  evidence  competent  to  be  considered  is  the 
hmguage  of  the  instrument  and  the  surrounding  circumstances 
at  the  time  of  its  execution,  including  the  situation  of  the 
parties  and  the  object  the}'  had  in  view;'"'*  and  the  practical 
interpretation  by  the  parties  themselves  is  en4:itled  to  great 
if  not  controlling  influence.^^  But  this  latter  rule  has  an  appli- 
cation only  when  there  is  doubt  as  to  its  true  meaning;  for, 
where  its  meaning  is  clear,  an  erroneous  consitruction  of  it  by 
them  will  not  control  its  effect.'^'^ 


is  too  uncertain  for  a  decree,  and 
too  indefinite  to  permit  the  intro- 
duction of  parol  evidence  to  make 
it  more  certain.  Jones  v.  Carver, 
59  Tex.  293.  An  agreement  to  sell 
"one-half  acre  of  land  adjoining 
K.'s  lot  on  the  east  and  running 
due  west,"  it  has  been  held,  does 
not  describe  the  boundaries  with 
sufficient  certainty  to  satisfy  the 
statute  of  frauds;  and  oral  evi- 
dence to  show  the  boundaries 
agreed  upon  is  inadmissible. 
Sherer  v.  Trowbridge,  135  Mass. 
500.  A  memorandum  which  de- 
scribed the  land  sold  as  a  "lot  on 
Eighteenth  street,  50x180,  about 
three  hundred  feet  south  of  Her- 
bert street,"  was  held  not  sufficient 
to  satisfy  the  statute  of  frauds. 
Schroeder  v.  Taaffe,  11  Mo.  App. 
267.  An  agreement  to  convey  "my 
land,  .  .  .  the  entire  tract, 
seven  hundred  and  twenty-eight 
acres,"  held  to  be  too  ambiguous  to 
be  enforced  in  equity.  Barnet  v. 
Nichols,  56  Miss.  622;  and  see 
Thompson  v.  Gordon,  72  Ala.  455; 
Eggleston  v.  Wagner,  46  Mich.  610; 
Johnson  v.  Granger,  51  Tex.  42; 
Scarritt  v.  M.  E.  Church,  7  Mo. 
App.  174.  A  description  of  land  as 
"lots  Nos.  1  and  2  on  F  street," 
without  reference  to  any  plan  by 
which  the  premises  could  be  identi- 
fied, held  not  to  be  sufficient  memo- 


randum under  the  statute  of 
frauds.  Clark  v.  Chamberlin,  112 
Mass.  19.  An  agreement  to  sell 
"one-half  acre  of  land  adjoining 
K.'s  lot  on  the  east  and  running 
due  west"  does  not  describe  the 
boundaries  with  sufficient  cer- 
tainty. Sherer  v.  Trowbridge,  135 
Mass.  500.  A  contract  for  the  sale 
of  "two  and  one-half  acre  tract  of 
land,  being  the  first  half  of  the 
five-acre  tract  along  by  the  fence 
just  back  of  the  Chicago  Catholic 
burying  ground,"  is  not  specific 
enough  to  satisfy  the  statute  of 
frauds.  Pierson  v.  Ballard,  32 
Minn.  263.  A  description  of  land 
in  an  agreement  to  convey  as  five 
acres,  lot  3,  section  23,  etc.,  there 
being  nothing  to  show  what  five 
acres  are  intended,  is  not  a  good 
description,  and  the  defect  cannot 
be  supplied  by  parol.  Nippolt  v. 
Kammon  (Minn.),  40  N.  W.  Rep. 
266;  and  see  King  v.  Ruckman,  5 
C.  E.  Green  (N.  J.)  316;  Hammer 
V.  McEldowney,  46  Pa.  St.  334. 

^*  Preble  v.  Abrahams,  88  Cal, 
245;  Kennedy  v.  Gramling,  33  S.  C. 
367. 

55  Chicago  V.  Sheldon,  9  Wall. 
(U.  S.)  50;  Fire  Ins.  Co.  v.  Doll, 
35  Md.  89;  Preble  v.  Abrahams,  88 
Cal.  245. 

56  Fire  Ins.  Co.  v,  Doll,  35  Md. 
89. 


CONSTRUCTION  OF  LAND  CONTRACTS.  177 

As  just  stated,  a  contract  cannot  be  extended  by  implica- 
tion; nor  can  it  be  so  extended  by  express  lan{,'uaj;e  when, 
from  the  ^em-ral  wording  of  the  instriimcnit,  a  contrary  intent 
is  manifest  or  deducihh'  uiKhi-  I  lie  application  of  recognized 
le^al  rules.  Tlius,  wliere  tlie  contract  specifically  descrilies 
the  lauds  and  states  the  (piantity,  it  has  been  held  that  the 
contract  cannot  be  extended  to  cover  other  lands  than  those 
thus  described,  althou;:,h  it  cdutaius  a  clause  that  the  purchase 
is  intended  to  be  of  all  the  lauds  si  ill  belonging  to  the  vendor.-''" 

The  general  rule  would  seem  to  be  that,  when  land  forms 
the  subject-nui titer  of  a  contract,  it  must  be  so  desciibed  as  to 
leave  no  uncertainty  as  to  its  shape,  quantity  and  locatictn; 
and  if  these  particulars  are  entirely  wanting,  or  can  only  be 
supplied  by  a  resort  to  parol  evidence,  the  memorandum  is 
insullicient  to  warrant  an  enforcement  of  the  contract  or  a 
decree  of  conveyance.  Where  a  sufficient  description  is  given, 
jiarol  evidence  uuiy  be  resorted  to  in  order  to  fit  the  descrip- 
tion to  the  land;  but  where  the  description  is  insufficient  or 
vague  and  uncertain,  and  the  uncertainty  is  patent,  or  where 
there  is  no  description,  such  evidence  is  inadmissible.^^ 

§  133.  Continued — TJnlocated  land.  Not  infrequently  con- 
tracts are  made  for  the  sale  of  land  in  specific  quantities  but 
undesignated  location,  sometimes  taking  the  foi-m  of  grants 
in  proBsenti,  and  at  others  of  a  simple  contract  to  convey.  The 
exact   nature  of  such,  a  contract  is  difficult   to  determine, 

57  Gibbs    V.    Diekma,    102    U.    S.  owned  five  thousand  acres  instead 

(L.  ed.)    177.     In  this  case  there  of  one  thousand  five  hundred  and 

was  a  contract  for  the  sale  of  cer-  sixty.      The    court    held    that   the 

tain  lands  which  were  specifically  clause  just  shown    was    evidently 

described,  after  which  was  added  added  by  way  of  limitation,  so  as 

tfte  following  clause:     "This    pur-  to  exclude  from  the  sale  any  of  the 

chase  is  intended  to  be  of  all  the  parcels  specifically  described  which 

lands   still    belonging   to   the    said  should  be  found  to  have  been  previ- 

Holland   Harbor  Board,  the   same  ously  contracted  to  other  parties, 

being  one   thousand   five  hundred  And  see  Brunswick  Savings  Inst.  v. 

and   sixty  acres,  more  or  less,  at  Crossman,  76  Me.  577. 
ninety  cents  per  acre.     If  it  shall        ■''"*  Hamilton    v.   Harvey,   121   111. 

be   found   that  any   of  the  above-  469;    Miller  v.   Campbell,    52   Ind. 

described   lands   have   before   this  125;    Hammer  v.   McEldowney,  46 

date  been  conveyed   to  other  par-  Pa.  St.  334;  Jordan  v.  Fay,  40  Me. 

ties,    such    lands   shall    not  be   in-  130;  King  v.  Ruckman,  20  N.  J.  Eq. 

eluded  in  this  sale."    It  afterwards  316;    Lynes  v.  Hayden,  119  Mass. 

appeared     that     the     Board     still  482. 
12 


178  CONSTRUCTION  OP^  LAND  CONTRACTS. 

whether  in  form  a  covenant  to  convey  or  a  present  grant.  In 
the  policy  of  the  hind  system  of  the  federal  government,  grants 
of  this  nature  are  permitted,  the  grant  being  in  the  nature  of 
a  "float,"  which  does  not  attach  to  any  particular  parcel  until 
located;  but  upon  a  definite  locution  the  title  to  each  par- 
ticular parcel  is  held  to  be  as  complete  as  if  it  had  been  granted 
by  name,  number  or  location.^"  The  application  of  this  prin- 
ciple to  private  grants  is,  however,  radically  opposed  to  many 
of  the  best  known  and  most  tirmly  established  rules  of  law. 
An  executory  contract  for  the  sale  of  a  specific  quantity  to  be 
taken  from  a  choice  of  designated  localities,  the  respective 
localities  being  themselves  definitely  established,  would  prob- 
ably be  enforced  upon  the  exercise  of  the  right  of  selection 
given.  If  in  form  a  deed  of  present  grant  it  would,  of  course, 
be  inoperative  to  convey  a  legal  title;  but  it  would  be  doing 
no  violence  to  established  rules  to  say  that  it  would  confer 
an  equity  in  the  enumerated  quantity  of  land,  depending  on 
the  exercise  of  the  vendee's  right  of  selection.'^^  But  a  con- 
tract to  convey  a  stated  number  of  acres  in  a  certain  county 
or  state,  without  other  or  further  description,  would  be  void 
for  vagueness  and  uncertainty.*5i 

§  134.  Continued — History  of  title.  It  is  no  uncommon 
practice  to  insert  in  contracts  and  conveyances  a  mention  of 
some  incident  in  the  history  of  the  title,  as  that  the  property 
is  the  same  premises  conveyed  to  the  vendor  by  a  certain  per- 

50  See  9  Opinions  Att'y-Gen.  41;  convey    "one    hundred    and    sixty 

R.  R.  Co.  V.  U.  S.  92  U.  S.  733.  acres  of  land  in  any  one  of  the  fol- 

60  See  Dull  v.  Blum,  4  S.  W.  Rep.  lowing  counties  in  the  state  of 
(Tex.)  489.  In  this  case  a  grant  of  Missouri,"  naming  them;  held,  that 
one  hundred  acres  to  be  taken  in  the  right  to  demand  a  conveyance 
a  rectangular  form  out  of  any  of  could  not  be  enforced,  the  contract 
the  four  corners  of  a  designated  in  reference  thereto  being  invalid 
tract  which  the  grantee  might  se-  for  want  of  a  description.  But  see 
lect  was  denied  operation  as  a  Carlyon  v.  Eade,  48  Iowa  707, 
deed,  but  permitted  to  stand  as  an  where  it  was  held  that  a  contract 
executory  contract  for  the  convey-  by  A.  that  B.  might  have  his  choice 
ance  of  the  enumerated  quantity  of  whatever  land  A.  might  have  in 
upon  the  vendee's  selecting  same,  a  specified  county  gave  B.  the  right 
And  see  Carlyon  v.  Eade,  48  Iowa  to  demand  and  receive  from  A.  a 
707.  list  of  A.'s  lands  from   which   to 

61  Newman  v.  Perrill,  73  Ind.  153.  make  the  selection. 
The  contract     in  this  case  was  to 


CONSTRUCTION  OF  LAND  CONTRACTS.  179 

SOU  at  a  prior  date,  or  wlntli  be  a(<niired  as  heir  of  a  person 
named,  or  as  distrihiitee  of  a  certain  estate,  etc.  Such  descrip- 
tions slaudiu}^  by  tlieuiselves  or  iu  connection  witli  other  and 
less  particular  descriptions  are  fre(jnently  of  j^reat  utility  in 
definitely  locatinj;  the  land  by  reference  to  extrinsic  facts; 
and,  like  descriptions  by  desi<^iiation,  of  which  they  may  be 
said  to  form  a  species,  are  efifective  to  pass  the  estate  of  the 
j;:rantor  in  all  the  lands  that  can  be  shown  to  fall  within  their 
terms. 

But  if  there  exists  no  doubt  or  question  as  to  the  identity 
or  location  of  the  land  in  (juestion,  which  is  described  with 
absolute  certainty  by  metes  and  bounds,  with  statement  of 
quantity  or  reference  to  visible  monuments,  the  mention  of 
events  in  the  history  of  the  title  is  of  comparatively  little 
moment.  If  the  incidents  are  correctly  stated  they  may  be 
regarded  as  recitals  only;  and  if,  on  the  other  hand,  the  state- 
ments create  an  apparent  repugnancy,  they  will  not  be  per- 
mitted to  have  force  against  the  mention  of  metes,  bounds, 
courses,  distances  and  visible  monuments.  When  a  piece  of 
land  is  so  described  that  a  surveyor's  chain  can  be  stretched 
along  its  boundaries  with  absolute  certainty  as  to  each  course 
and  distance,  a  transposition  of  dates  in  stating  previous  con- 
veyances constituting  the  chain  of  title,  or  an  erroneous  men- 
tion of  any  incident  occurring  in  the  history  of  its  devolution, 
will  not  cloud  or  affect  that  certaintj-,  nor  destroy  the  oper- 
ative force  of  a  conveyance.^^  Ordinarily  references  are  made 
to  prior  convejances,  not  so  much  for  the  purpose  of  fixing 
the  boundaries  as  to  show  the  grantor's  chain  of  title,  and  in 
construing  descriptions  this  view  is  usually  taken  by  the 
courts. 

The  true  interpretation,  therefore,  of  recitals  of  this  char- 
acter seems  to  be  that  they  are  to  be  regarded  merely  as 
descriptive  of  the  thing  granted  and  not  of  the  quantity  of 
the  grantor's  interest.^^ 

02  Sherwood   v.   Whiting,   8    Atl.  then  proceeded  to  further  identify 

Rep.  80;  Hastings  v.  Hastings,  110  them   as   being    the    same     lands 

Mass.  280;  Deacons  v.  Walker,  124  which  were  described  in  two  mort- 

Mass.  69.  gages  therein  specified,  and  this  in 

fis  As  where  a  deed  containing  a  turn  was  followed  by  the  clause: 

full    and    sufficiently   accurate   de-  "Intending  to   convey     the     same 

scription   of    the    lands    conveyed  lands  and  no  other  which  passed  to 


ISO  CONSTRUCTION  OF  LAND  CONTRACTS. 

§  135.  Description  by  designation.  The  chief  requisite  of 
a  description  consists  in  the  identification  of  the  property,  and 
if  this  result  can  be  attained  so  as  to  indicate  the  property 
with  certainty,  formality  is  immaterial.  Thus,  a  "house  and 
lot"  or  "one  house  and  lot,"  in  a  particular  locality,  would  be 
insufficient,  because  too  indefinite  on  the  face  of  the  instru- 
ment itself;  but  "my"  house  and  lot  imports  a  particular 
house  and  lot,  rendered  certain  by  the  description  that  it  is 
the  one  which  belongs  to  "me;"  and  where  the  instrument 
does  not  itself  show  that  the  vendor  had  more  than  one  house 
and  lot,  it  will  not  be  presumed  that  he  had  more  than  one. 
In  such  case  it  has  been  held  there  is  no  patent  ambiguity. 
If  it  be  shown  that  he  has  more  than  one,  it  must  be  by 
extrinsic  proof;  and  hence,  it  is  held,  the  case  would  then  be 
one  of  latent  ambiguity,  which  may  be  explained  by  similar 
proof.^*  This  doctrine  has  in  some  cases  been  carried  to 
extreme  lengths.^^ 

A  description  by  designation,  used  in  connection  with  other 
descriptions  which  call  for  courses,  distances,  etc.,  will  in 
some  cases  overcome  such  other  descriptions  when  same  are 

me  by  virtue  of  the  foreclosure  of  tion  or  reservation,  such  descrip- 

said  mortgages."     Held,    that   the  tion   could   be   overcome    when   it 

latter  clause  should  not  be  treated  turned  out  that  the  grantor  did  not 

as  anything  more  than  a  reference  own   all   he   described,  by  adding 

to  the   mortgages  and   decree   for  a  clause  as  to  his  intent." 
further  and  more    particular    de-       C4  Carson  v.  Ray,  7  Jones' L.  (N. 

scription.     Wilder  v.   Davenport's  C.)  609. 

Estate,  58  Vt.  642.  65  All  "my"  lands  on  both  sides 

In  the  foregoing  case,  which  was  of  Har  river,  has,  under  the  rule, 

an  action  on  the  covenant  of  war-  been  held  sufficient.    Henly  v.  Wil- 

ranty,  it  was  contended  that  the  son,   81  N.   C.   407.     "My     Lenoir 

final     clause     in     the     description  lands"  held  good,  the   description 

above  quoted  controlled    the    pre-  being  such  that  by  proof  aliunde 

vious    description    by    metes    and  the  description  may  be  fitted  to  the 

bounds,  and  limited  the  amount  of  land.     Thornburg  v.  Matsen,  88  N. 

land      conveyed      to      what      the  C.  293.    An  agreement  as  follows: 

grantor   actually   owned;    but   the  "I  agree  to  make  good  titles  in  fee 

court  say:     "It  is  hardly  suppos-  to  my  forty  near  the  G.  lands  in  H. 

able  that  any  man  intends  to  con-  county  to  A.  B.,"  and  stating  the 

vey  land  that  he  does  not  own.    It  receipt   of    a    consideration,      and 

would     therefore    be    introducing  signed,  held,  to  contain  a  sufficient 

complete  uncertainty  in  deeds  if,  description  of  the  land  to  be  sold 

after     a     precise     description     by  to   satisfy   the    statute.     Lente   v. 

metes  and  bounds,  without  excep-  Clarke,  22  Fla.  515. 


CONSTRUCTION  OF  LAND  CONTRACTS.  181 

repugnant  to  or  inconsistent  with  tlic  designator^  description. 
Tlius,  in  an  agrccincnt  for  a  deed  (lie  land  was  first  described 
hy  numbers  and  dimensions  and  then  as  the  propeHy  known 
as  the  "Cook  &  Glover  block."  The  plain  intent  seemed  to  be 
that  the  i)roper(y  to  be  conveyed  was  a  certain  "block,"  but 
the  parties  by  mistake  assumed  that  it  covered  only  one-half 
of  a  certain  lot  and  the  land  was  so  described,  whereas  it 
occupied  two  and  one-half  feet  more  of  the  lot,  which,  if  the 
description  by  numbers  and  dimensions  were  to  prevail,  would 
leave  that  part  unconveyed.  It  was  therefore  held  that  the 
words  "Cook  &  Glover  block"  were  the  controlling  and 
descriptive  words;  that  in  effect  it  was  the  "block"  which  was 
conveyed;  and  that,  as  the  same  was  a  fixed  and  permanent 
monument,  any  words  of  description  repugnant  thereto  should 
be  rejected.^'^ 

A  description  by  some  well-known  or  commonly-accepted 
name  has  frequently  been  held  to  answer  the  requirements  of 
the  statute  and  to  pennit  of  specific  performance  of  the  con- 
tract.*^''  The  American  cases  which  announce  this  rule  are 
largely  influenced  by  English  precedents,  the  designatory 
method  of  description  being  much  employed  in  England. 

§  136.  The  medium  of  payment.  Where  land  is  sold  for  a 
money  consideration  the  medium  of  payment  is  ordinarily 
expressed  in  "dollars,"  with  the  not  infreciuent  addition,  "law- 
ful money  of  the  United  States."  It  would  seem  that  such  a 
statement  would  leave  little  or  no  room  for  contention  or 
admit  of  questions  of  construction;  yet  there  exists  a  large 
body  of  case  law  which  has  arisen  in  the  construction  of  the 
federal  constitution  and  the  various  acts  of  congress  and  the 
state  legislatures  in  regard  to  what  constitutes  a  legal  tender 
in  payment  of  obligations  founded  on  contracts  made  in  time 
of  peace  as  well  as  in  time  of  war. 

The  federal  constitution^^  provides  that  no  state  shall  "make 

60  Lyman  v.  Gedney,  114  111.  388.  its  consideration  all   the  vendor's 

6T  A  writing  describing  the  prop-  "title  or  claim  to  property  bought 

erty   sold   as   "Silver   Lake   Place,  of  A.  and   B.,  and  known  as  the 

near  Washington,   Kentucky,   con-  Gentle  property,"  held  good  under 

taining  fifty-two  acres,"  held  suf-  the    statute   of   frauds.     Smith   v. 

ficient  to  satisfy  the  requirements  Freeman,  75  Ala.  285. 

of*  the  statute.    Winn  v.  Henry,  84  es  Art.  I,  §  10, 
Ky.  48.     So  a  bond  expressing  as 


182        CONSTRUCTION  OF  LAND  CONTRACTS, 

anything  but  gold  and  silver  coin  a  legal  tender  for  the  pay- 
ment of  debts;"  but  congress,  during  the  earlier  years  of  the 
civil  war,  passed  several  laws  known  as  the  legal-tender  acts, 
whereby  United  States  treasury  notes  were  declared  to  be  a 
legal  tender  for  the  payment  of  all  private  debts.  The  con- 
stitutionality of  these  acts,  though  much  doubted  at  the  time, 
was  finally  affirmed  by  the  supreme  court.^'^  To  avoid  the 
depreciation  in  value  which  at  different  times  has  attended  the 
United  States  treasury  notes,  parties  frequently  make  their 
contracts  payable  in  "gold  coin,"  or,  in  "gold  coin  of  the  pres- 
ent standard  of  weight  and  fineness."  The  earlier  cases  would 
seem  to  hold  that  such  contracts  amounted  to  nothing  more 
than  obligations  to  pay  the  nominal  value  in  any  money  that 
was  a  legal  tender  ;'^^  but  later  cases  have  established  the  doc- 
trine that  a  contract  to  pay  in  a  particular  kind  of  coin  may 
be  specifically  enforced."^  In  the  rendition  of  such  decisions  it 
would  seem  that  it  is  not  on  the  basis  of  a  difference  in  the 
values  of  money  that  the  courts  will  enforce  a  contract  or  ren- 
der a  judgment  for  a  specific  kind,  for  the  law  will  not  recog- 
nize any  difference  in  value  between  one  kind  of  money  which 
is  a  legal  tender  and  any  other  kind  which  possesses  the  same 
character  ;'^2  i^^^  \f  jg  upon  the  ground  that  the  parties  have 
specifically  contracted,  just  as  they  might  have  contracted  for 
payment  in  any  other  commodity,  for  payment  in  a  specific 
thing;  and  hence  the  obligor  is  bound  to  tender  that  specific 
thing — gold  or  silver  coin,  as  the  case  may  be — precisely  as  he 
would  be  bound  to  tender  a  specific  quantity  or  quality  of  any 
other  commodity .'^3 

A  covenant  to  pay  in  "lawful  money,"  or  in  "dollars,"  is  in 

69  By  virtue   of   the   paramount  ^i  whitaker  v.  Dyer,  56  Ga.  380; 

right   of   congress,    and    upon    the  Chesapeake  v.  Swain,  29  Md.  483; 

ground  that  the  constitutional  in-  Ins.  Co.  v.  Thomas,  104  Mass.  192; 

hibition  was  directed  only  to  the  Kellogg  v.  Sweeney,  46  N.  Y.  291; 

states  and  not  to  the  federal  gov-  Bronson  v.  Rodes,  7  Wall.  (U.  S.) 

ernment.     See  Legal-tender  Cases,  229. 

110  U.  S.  421;  and,  also,  George  v.  "2  Wells,    etc.    v.    Van    Sickle,    6 

Concord,   45   N.    H.   434;    Black  v.  Nev.  45;  Reese  v.  Stearns,  29  Cal. 

Lusk,  69  111.  70;  Verges  v.  Gibony,  273;  Bank  v.  Burton,  27  Ind.  426. 

38  Mo.  458.  '3  Wells,   etc.   v.   Van    Sickle,     6 

TO  Appel  v.  Waltman,  38  Mo.  194;  Nev.   45;    Bank  v.   Van  Vleck,   49 

T  aughlin  v.  Harvey,  52    Pa.  St.  9;  Barb.  (N.  Y.)  508. 
Brown  v.  Welch,  26  Ind.  116. 


CONSTRUCTION  OF  LAND  CONTRACTS.  183 

legal  effect  payable  in  whatever  the  laws  of  the  United  States 
declare  to  be  a  U'^nl  teiiderJ^ 

Au  interesting  (juestion  arises  when  the  contract  is  to  pay 
the  purchase  price  in  some  commodity  other  than  money,  and 
the  decisions  upon  the  subject  seem  to  be  conflicting.  The 
question  usually  arises  when  an  attempt  is  made  to  pay,  or  to 
demand  payment,  in  money  instead  of  the  specific  articles 
contracted  for.  There  are  cases  which  adopt  the  theory  that 
provisions  of  this  character  in  regard  to  the  mode  of  payuient 
are  inserted  only  for  the  benefit  of  the  debtor,  and  that  they 
give  to  him  the  privilege  to  pay  either  in  money  or  the  articles 
specified,  as  he  nuiy  elect;  but  the  better  reason,  as  well  as  the 
volume  of  authority,  would  seem  to  indicate  a  contrary  rule. 
The  decisions  which  support  the  latter  ])rincij»le  i)roceed  upon 
the  theory  that,  when  a  contract  expressly  provides  that  pay- 
ment shall  be  made  in  a  specific  article  at  a  specified  price,  to 
permit  the  parties  to  do  otherwise  is  to  insert  into  the  contract 
provisions  which  they  have  not  made.  The  mere  fact  that 
such  a.  contract  specifies  a  certain  number  of  dollars  as  the 
consideration  does  not  necessarily  imj)ly  that  the  vendor  was 
willing  to  sell  his  property  for  that  amount  in  money;  for  it 
may  be  the  sum  was  only  fixed  in  view  of  the  other  provision 
for  payment  in  a  specific  article  at  a  specified  price,  and  that 
mode  of  payment  may  have  been  the  very  reason  that  induced 
the  vendor  to  make  it. 

Again,  the  rule  first  stated  being  devoid  of  mutuality  is 
Intrinsically  unjust.  Thus,  if  the  value  of  the  article  in  which 
payment  is  to  be  made  falls  below  the  specified  price,  all  the 
cases  hold  that  the  debtor  m;iy  still  pay  in  that  article  at  that 
price.  But  if  the  value  rises  above  that  price,  to  say  that  he 
may  elect  to  pay  in  money  is  to  say  that  the  vendor  must  lose 
by  the  fall  of  the  value  of  the  article  he  contracts  for,  but  can- 
not gain  by  the  rise.'^^ 

T*  Miller  v.  Lacey,  33  Tex.  351.  ty-five   cents   per  bushel,   and   the 

75  See  Wilson  v.  George,  10  N.  H.  wheat   to  be   delivered   at  certain 

445;  Cole  v.  Ross,  9  B.  Mon.  (Ky.)  times  and  quantities.     Before  the 

393.     In  Starr  v.  Light,    22    Wis.  time    of    delivery    wheat    became 

433,    the    plaintiff    sold    land    for  worth  much  more  than  seventy-five 

which  the  defendant  agreed  to  pay  cents  per  bushel.     The  defendant 

in   merchantable   wheat   of   a  cer-  claimed  the  right  to  pay  in  money 

tain  quality,  the  price  to  be  seven-  the  consideration  named;  but  the 


184  CONSTRUCTION  OF  LAND  CONTRACTS. 

§  137.  Conditions  in  avoidance.  A  familiar  provision  iu 
agreements  for  sale  is  that  where,  in  the  event  of  failure  on 
the  part  of  the  vendee  to  comply  with  the  terms  and  condi- 
tions thereof,  the  vendor  is  to  be  released  from  all  obligations 
to  convey  the  bargained  property,  the  vendee  to  forfeit  all 
right  thereto,  and  the  agreement  to  be  void.  This  clause  is 
now  always  construed  to  give  the  vendor  an  option,  on  the 
happening  of  the  contingency,  either  to  avoid  the  agreement 
or  to  enforce  if^^  The  vendee,  however,  cannot  set  up  his  own 
neglect  as  avoiding  the  contract,  even  though  the  terms  are 
express  that  the  contract  shall  be  void;  for  they  are  only  held 
to  mean  that  the  contract  shall  be  void  at  the  election  of  the 
vendor,  for  whose  benefit  the  provision  is  inserted.'^'^ 

Conditions  are  ordinarily  raised  by  way  of  proviso;  but 
while  the"  words  "provided  that"  and  "provided  also"  are  com- 
petent to  create  conditions,  and  are  usually  so  construed,  they 
do  not  always  have  that  effect.  Whether  there  is  a  condition, 
or  whether  it  be  precedent  or  subsequent,  is  to  be  determined 
from  the  intent  of  the  parties  as  indicated  from  the  whole  lan- 
guage used  and  the  nature  of  the  act  required.^^ 

§  138.  Time  of  performance.  The  subject  of  time  as  a  con- 
stituent element  of  a  contract  has  already  been  considered,  and 
the  general  rule  stated  that,  where  no  time  is  mentioned  in  a 
contract  for  the  performance  of  its  conditions,  and  it  cannot 
be  gathered  from  the  language  employed  what  was  the  inten- 
tion in  this  respect,  the  law  will  imply  a  reasonable  time,  and 
that  what  is  a  reasonable  time  will  depend  upon  the  peculiar 
circumstances  of  the  case.  This  rule,  while  of  general  appli- 
cation, is  particularly  adapted  to  those  agreements  whereby  a 
party  undertakes  to  do  some  particular  act  the  performance  of 
which  depends  entirely  upon  himself,  and  the  contract  is  silent 

court  held  that  the  vendor  was  en-  76  Wilcoxon  v.  Stitt,  65  Cal.  596; 

titled  to  the  wheat,  or  in  default  Canfield   v.  Westcott,  5   Cow.    (N. 

thereof  he  might  recover  its  actual  Y.)  270. 

value  at  the  time  specified  for  its  77  Mason   v.    Caldwell,     5     Gilm. 

delivery,  and  that  the  vendee  had  (111.)  196;  Cartwright  v.  Gardner, 

no  right  to  pay  in  money  instead  of  5  Cush.  (Mass.)  281. 

wheat  the  amount  of  the  purchase  ts  Schwoerer  v.  Market  Ass'n,  99 

price.    And  see,  also.  Wells  v.  Van  Mass.  285. 

Sickle,   6   Nev.   45;    Bank   v.    Van 

Vleck,  49  Barb.  (N.  Y.)  508. 


CONSTRUCTION    OF    LAND    CONTRACTS.  185 

as  to  the  time  in  which  it  shouhl  he  (lone.  In  sncli  cases  the 
law,  without  reference  to  extraordinary  circumstances,  will 
imply  that  it  shall  be  performed  within  a  reasonable  time. 
Thus,  where  a  party  has  obligated  liiniself  to  i)ay  a  j^iven  sum 
of  money  by  a  future  day,  which  is  fixed  as  tiie  time  for  the  full 
perfonnance,  and  it  is  agreed  that  the  sum  to  be  paid  may  be 
increased  or  diminished  by  the  performance  of  another  act  left 
to  the  option  of  the  parties,  the  law  will  require  either  party, 
or  the  party  holding  the  option  if  there  be  only  one,  to  exer- 
cise such  option  and  perform  such  act  before  full  payment  of 
the  sum  named  is  made;  and  after  full  payment  the  party  will 
be  held  to  have  waived  his  right  to  do  the  act  entitling  him  to 
a  further  sum  or  to  a  diminution,  as  the  case  may  beJ" 

§  139.  Computation  of  time.  Where  a  specified  number  of 
days  is  provided  for  the  delivery  of  an  abstract,  an  examina- 
tion of  the  title,  the  payment  of  money  or  the  performance  of 
any  other  particular  act  or  duty,  and  the  time  is  to  be  com- 
puted from  a  particular  day  or  the  happening  of  a  particular 
event,  sucli  day  so  specified,  or  the  day  of  the  happening  of 
such  event,  is  to  be  excluded  from  the  computation;  for  the 
law  rejects  fractions  of  a  day,  and  an  act  done  in  the  compass 
of  it  is  not  referable  to  one  jjortion  of  the  day  more  than 
another,  so  that  the  act  is  not  considered  to  be  passed  and 
done  with  until  the  day  has  passed.  The  general  rule,  there- 
fore, is  to  exclude  the  first  and  include  the  last  day  of  the 
limit,  yet  this  rule  has  many  exceptions  and  is  not  to  be 
regarded  as  fixed  or  unyielding;  and  in  considering  whether, 
upon  a  contract  to  do  an  act  or  enter  into  an  engagement  at 
or  for  a  definite  time  from  a  certain  date,  the  time  is  to  be 
reckoned  exclusively  or  inclusively  of  the  last  day,  each  case 

70  As,.where  the  owner  of  a  farm  acres,  and  if  such  survey  showed 
supposed  to  contain  four  thousand  the  land  to  contain  more  acres 
four  hundred  and  forty-one  acres  than  the  parties  supposed,  the  pur- 
sold  the  same  at  a  stipulated  sum  chaser  should  pay  the  difference, 
per  acre,  the  purchase  money  to  be  and  if  it  contained  less,  the  amount 
paid  in  instalments  at  times  fixed  of  the  deficit  should  be  deducted 
by  the  contract.  It  was  further  from  the  purchase  money  or  cred- 
provided  in  the  contract  that  ited  upon  the  notes  evidencing  the 
either  party  might,  at  his  own  ex-  deferred  payments.  Some  seven 
pense,  survey  the  land  if  he  saw  years  after  the  date  of  the  last 
fit,    to   ascertain    the    number    of  payment  the  vendor  had  a  survey 


]8C       CONSTRUCTION  OF  LAND  CONTRACTS. 

must  depend  largely  upon  its  own  circumstances,  the  relative 
situation  of  the  parties  and  the  subject-matter. 

Where  the  computation  is  made  in  months,  a  calendar 
month  is  understood,  unless  it  appears  from  the  general  con- 
text of  the  contract  that  a  lunar  month  was  intended. 

§  140.  Assignment  of  contract  for  security.  The  assign- 
ment of  a.  contract  for  the  purchase  of  land  by  the  vendee 
therein  named  as  a  security  for  a  debt  due  the  assignee  is  in 
equity  a  mortgage,  and,  being  of  an  interest  in  real  estate, 
must  be  governed  by  the  rules  which  are  applicable  to  a  mort- 
gage of  the  legal  estate.^^  The  assignee  has  a  right  to  fore- 
close upon  condition  broken,  and  the  assignor  the  correspond- 
ing right  to  redeem.si 

made  and  brought  suit  against  the  ony,  45  111.  264;  Bull  v.  Shepard,  7 

purchaser  for  an  excess  shown  by  Wis.  440;  Christy  v.  Dana,  34  Cal. 

the   survey.     Held,   that   he   could  548. 

not  recover,  the  survey  after  pay-  '^i  And  while,  on  a  bill  to  redeem, 

ment  of  the  last  instalment  being  the  mortgagor  generally  pays  costs, 

too  late.     Hamilton  v.  Scully,  118  yet  if,  on  application  before  suit, 

111.  192.  the  mortgagee  refuses  to  allow  re- 

80  Brockway    v.    Wells,    1    Paige  demption,  he  may  be  compelled  to 

(N.  Y.)   617;   Alderson  v.  Ames,  6  pay  costs.     Brockway  v.   Wells,  1 

Md.  52;  Baker  v.  Bishop  Hill  Col-  Paige  (N.  Y.)  617. 


CHAPTER  V. 

VALIDITY  OF  LAND  CONTRACTS. 

Art.    I.    Geneually  Considered. 

Art.  II.    As     Affected     by     the     Statute  of  Frauds. 

Article  1.    Generally  Considered. 

§  141.  Preliminary  remarks.  §  147.  Allotments  by  chance. 

142.  Conflict  of  laws.  148.  Sunday  contracts. 

143.  Executed  contracts.  149.  Agreements    to    convey   by 

144.  Agreements    prohibited  by  will. 

statute.  150.     Contracts       procured       by 

145.  Agreements  against  public  fraud. 

policy.  151.     Ante-nuptial  contracts. 

146.  Agreements  void  in  part.  152.    Post-nuptial  contracts. 

§  141.  Preliminary  remarks.  Tlio  subject  of  this  chapter  is 
so  intimately  connected  with  other  branches  of  the  law  gov- 
erning the  relation  of  vendor  and  purchaser,  and  with  the 
rights  and  remedies  growing  out  of  such  relation,  that  only  its 
general  features  can  be  shown  without  repeating  what  can  be 
more  advantageously  stated  in  other  parts  of  the  work  and 
in  connection  with  collateral  topics  which  serve  to  illustrate 
the  special  phases  of  invalidity.  Fraud,  deceit,  circumvention, 
misrepresentation,  etc.,  are  matters  which  go  to  the  validity 
or  invalidity  of  a  contract,  but  these  matters  are  best  shown 
in  connection  with  the  remedies  which  are  founded  upon 
them. 

Contracts  invalid  per  sc  are  few  in  number  and  limited  in 
character;  on  the  other  hand,  contracts  void  at  the  election  of 
one  or  both  of  the  parties  are  very  numerous  and  have  a  wide 
range  on  which  to  pi-edicate  invalidity.  Contracts  made  in 
contravention  of  jiositive  statute,  or  such  as  injuriously  affect 
public  morals,  or  are  opposed  to  the  spirit  and  policy  of  the 
laws,  are  for  that  reason  void  and  inca])able  of  enforcement  if 
executory,  or  of  rescission  if  executwl;  but  contracts  which 
derive  their  invalidity  from  some  of  the  ingredients  entering 
into  the  same,  and  which  do  not  come  strictly  within  the  legal 
definitions  of  the  class  of    contracts    first    mentioned,    are 

187 


188  VALIDITY  OF  LAND  CONTRACTS. 

avoided  only  by  some  act  of  the  parties  indicative  of  disaffirm- 
ance. 

§  142.  Conflict  of  laws.  It  is  a  well  recognized  principle 
of  law  that  the  validity  of  a  contract  is  to  be  decided  by  the 
law  of  the  place  where  it  was  made,  unless,  either  expressly 
or  impliedly,  it  appears  that  it  is  to  be  performed  elsewhere. 
It  is  a  further  principle  that,  if  valid  b}'  the  law  of  the  jilace 
where  made,  it  is  generally  valid  everywhere;  and  if,  in  the 
jurisdiction  where  made  the  law  would  enforce  it,  it  will  be 
enforced  in  the  jurisdiction  to  which  a  party  may  be  com- 
pelled toi  resort  for  a  remedy  for  its  violation.  But  to  this 
rule  there  is  the  exception,  that  no  state  or  nation  is  bound 
to  recognize  or  enforce  contracts  which  are  injurious  to  its 
own  interests,  or  the  welfare  of  its  people,  or  which  are  in 
fraud  or  violation  of  its  own  laws.^ 

Eoth  the  rule  and  the  exception  find  their  most  frequent 
application  in  contracts  and  sales  relating  to  chattels,  but 
there  is  no  distinction,  in  principle,  between  personal  or  real 
property  whenever  the  doctrine  is  invoked  as  a  rule  of  action. 

§  143.  Executed  contracts.  An  executed  contract,  though 
tainted  with  fraud,  is  nevertheless  binding  upon  the  parties,^ 
and  will  not  be  disturbed  on  the  ground  that  it  is  contrary  to 
public  policy;^  nor  for  want  of  consideration ;4  nor  will  the 
court  under  such  circumstances  inquire  into  the  legality  of  the 
consideration.^  These  principles  have  always  been  strictly 
enforced  in  all  transactions  between  parties  resting  under  no 
disability  or  laboring  under  no  incapacity.  Hence,  an  exe- 
cuted contract  for  the  sale  of  land  based  upon  illicit  sexual 
commerce  cannot  be  set  aside  at  the  instance  of  the  grantor 
or  his  heirs  ;^  nor  will  the  fact  that  the  property  is  to  be  used 

1  Banchor  v.  Mansel,  47  Me.  58;  105;  Meriwether  v.  Smith,  44  Ga. 
Hill  V.  Spear,  50  N.  H.  253;  Rob-  541;  Marksbury  v.  Taylor,  10  Bush 
Inson    V.    Queen,    87    Tenn.    445;     (Ky.).  519. 

Sondheim  v.  Gilbert,  117  Ind.  71.  4  Mercer  v.  Mercer,  29  Iowa,  557; 

2  Noble  V.  Noble,  26  Ark.  317;  Beauchamp  v.  Comfort,  42  Miss. 
Ager  V.  Duncan,  50  Cal.  325;   Set-    94. 

ter  V.  Alvey,  15  Kan.  157;  Clark  v.  fi  Kerr   v.    Birnie,   25   Ark.    225; 

Colbert,  67  Ala.  92 ;  White  v.  Hun-  Thomas  v.  Cronise,  16  Ohio  54. 

ter,  23  N.  H.  128.  c  Marksbury  v.  Taylor,  10  Bush 

3  Levet  V.  Creditors,  22  La.  Ann.  (Ky.),  519. 


GENERALLY    CONSIDERED.  189 

for  an  immoral  purjjose  impair  a  deed  for  the  sameJ  So,  also, 
where  title  was  acquired  as  the  result  of  a  bet,^  the  court 
refused  to  interfere,  holding  that  it  is  a  universal  principle 
both  at  law  and  in  equity,  that,  where  an  aj^reement  is  found<'d 
upon  a  consideration  illej^al,  immoral  or  aj^ainst  public  policy, 
a  court  will  leave  the  parties  where  it  finds  them.  If  executed, 
courts  will  not  rescind  it;  if  executory,  they  will  not  aid  in  its 
execution.^  A  deed  of  land  made  in  consideration  of  the  com- 
jjosition  of  a  felony  cannot  be  avoided  by  the  grantor.^ ^ 

§  144.  Agreements  prohibited  by  statute.  A  contract  which 
is  forbidden  by  statute  is  incapable  of  enforcement  in  any 
court,^^  even  though  the  statute  may  have  been  repealed  after 
such  contract  was  made.^^  This  is  the  general  rule;  and  it  is 
a  further  principle  in  connection  therewith,  that  where  a 
statute  prohibits  a  transaction,  although  without  in  terms 
declaring  it  void,  it  is  void  notwithstanding  if  done  in  viola- 
tion of  the  statute.i3  The  effect  of  the  prohibition  is  to  render 
the  i)rohibited  dealings  void.^^ 

The  subject  of  this  section  finds  many  examples  in  the  law 
of  vendor  and  purchaser  where  real  property  is  sold  in  connec- 
tion with  other  matters;  as  where  a  professional  man  sells 
his  property  and  practice  and  at  the  same  time  enters  into 
stipulations  restraining  his  right  to  further  pursue  his  calling. 

-  Sprague  v.  Rooney,  82  Mo.  493.        12  Gilliland  v.  Phillips,   1    S.   C. 

The   text   states   the   correct   rule  152.     But  if  the  parties  renew  the 

but  compare   Sprague   v.   Rooney,  contract   after  the   repeal   it   may 

104  Mo.  349.  then  become  valid.     Carr  v.  Bank, 

s  Thomas  v.  Cronise,  16  Ohio,  54.  29  La.  Ann.  258. 

0  See  Atwood  v.  Fish,  101  Mass.        J:i  Watrous  v.  Blair,  32  Iowa.  58; 

363;   Crowder  v.  Reed.  80  Ind.  1;  Swords  v.  Owen,  43  How.  Pr.   (N. 

Cushwa  V.  Cushwa,  5  Md.  44;  King  Y.)  167. 
V.  King.  61  Ala.  479.  1*  Swords  v.  Owen,  43  How.  Pr. 

"Worcester  v.  Eaton,  11  Mass.  (N.   Y.)    167;    Dillon  v.  Allen,   46 

368.    But  a  deed  given  to  procure  Iowa,     299.      The    distinction     in 

a   release   from    imprisonment  on  some    of    the    old    cases    between 

legal  process  regular  in  its  form,  malum  prohibitum  and  malum,  in 

in  a  suit  instituted  maliciously  and  se  has  long  since   been  exploded, 

without    probable    cause,    may    be  and   the   rule    is   now  well   estab- 

avoided    for    duress.      Watkins   v.  lished  that  no  agreement  to  do  an 

Baird,    6    Mass.   506.  act  forbidden  by  statute  or  to  omit 

11  Gilliland   v.   Phillips,   1   S.   C.  to  do  an  act  enjoined  by  statute 

152;    Fowler  v.  Scully,  72  Pa.  St.  is  binding.    Penn  v.  Bornman,  102 

456.  111.  523. 


190  VALIDITY  OF  LAND  CONTRACTS. 

There  can  be  no  doubt,  however,  but  that  parties  may  make 
a  valid  agreement  in  restraint  of  trade,  where  the  operation  of 
the  agreement  is  partial  and  limited  under  reasonable  condi- 
tions, and  where  it  is  supported  by  a  valuable  consideration. 
Such  a  contract  may  be  enforced  by  an  action  at  law  for  the 
recovery  of  damages  for  its  breach,  and  ma}'  be  upheld  in 
equity  by  a  decree  requiring  it  to  be  specifically  performed, 
and  an  injunction  will  be  granted  to  restrain  its  violation.^s 

Agreements  to  convey  land  will  not  be  sustained  where  b}' 
law  one  or  both  of  the  parties  have  no  capacity  to  consummate 
the  agreement,  or  where  an  express  prohibition  exists  of  the 
right  to  acquire  and  hold  for  any  except  a  specific  purj^ose, 
and  such  specific  pui*pose  is  not  contemplated  by  the  proposed 
sale.i^ 

As  a  general  rule,  a  penalty  prescribed  by  statute  for  the 
doing  of  an  act  implies  a  prohibition  which  will  render  the  act 
void,  yet  this  is  not  always  so;  and  in  every  instance  courts 
will  look  to  the  language  and  subject-matter  of  the  statute, 
the  wrong  or  evil  which  it  seeks  to  remedy  or  prevent,  and  the 
purpose  sought  to  be  accomplished  by  it.  If  from  all  these  it 
is  manifest  that  it  was  not  intended  to  render  the  prohibitory 
act  void,  the  courts  will  so  hold  and  construe  the  statute 
accordingly.^'^  Applying  this  rule  it  has  been  held  that  a 
statute  imposing  a  penalty  upon  any  person  who  shall  sell  or 
lease  any  lot  in  any  town,  city  or  addition  thereto  until  the 
plat  thereof  has  been  duly  acknowledged  and  recorded  does 
not  operate  as  a  prohibition  upon  the  sale    itself,    but    only. 

ir;  Cobbs  V.  Niblo,  6  111.  App.  60.  railroad    company   an    interest   in 

Where    the     defendant    sold     the  certain  lands  or  town  lots  pi'ovided 

plaintiff    a    piece    of    land    and    a  it  would  locate  its  station  at  a  cer- 

grocery    store,    and    made    at   the  tain  specified  place  is  void,  for  the 

same  time  a  verbal  agreement  not  reason  that  a  railroad  company  has 

to    carry    on    the    same    business  no  authority  to  acquire  land  for 

within    prescribed    limits,    it    was  purposes   of   speculation    under    a 

held  that  this  agreement,  being  a  grant  of  power  to  acquire  and  hold 

part  of  the  inducement  to  the  pur-  sufficient  land  for  the  construction 

chaser,  was  made  upon  a  valuable  of  its  road,  erection  of  necessary 

consideration,    though    the    agree-  buildings,  etc.    Pacific  R.  R.  Co.  v. 

ment    did    not   enhance    the    price  Seely,  45   Mo.  212. 
paid  for  the  land.    Peirce  v.  Wood-       i^  Pangborn     v.     Westlake,      36 

ward,  6  Pick.   (Mass.)   206.  Iowa,  546. 

i«Thus,  an  agreement  to  give  a 


GENERALLY    CONSIDERED. 


191 


imposes  a  penalty  upon  the  seller  and  hence  the  purchase  of 
such  a  lot,  the  plat  of  which  is  not  recorded,  is  not  rendered 
invalid  by  the  enactment ;i^  and  further,  that  it  does  not  ren- 
der void  a  note  given  for  the  purcliasc  money  of  lots  so  sold.^^ 

v;  145.  Agreements  against  public  policy.  Where  both  par- 
ties to  a  contract,  void  as  aj;ainst  public  policy,  are  equally  at 
fault,  the  law  will  leave  them  as  it  tinds  them.  If  the  con- 
tract be  still  executory,  it  will  not  enforce  it  nor  award  dam- 
ages for  its  breach.  If  already  executed  it  will  not  restore  the 
price  paid  nor  the  property  conveyed.-"  If  either  i)arty  has 
obtained  an  advantage  under  it  he  will  be  permitted  to  retain 
it,  and  no  subsequent  acts  of  the  parties  will  have  the  effect 
to  ratify  or  confirm  the  contract,  or  estop  them  from  asserting 
its  invalidity.21 

In  general,  public  policy,  as  the  term  is  used  in  the  fore- 
going paragraph,  is  that  principle  of  law  which  holds  that  no 
person  can  lawfully  do  that  which  has  a  tendency  to  be 
injurious  to  the  public  or  which  is  contrary  to  the  general 
welfare  of  society.  It  has  been  said,  that  public  policy  is  a 
variable  quality,  and  hence  not  always  to  be  defined  or  distin- 
guished by  any  inflexible  rule.    This  is  undoubtedly  true,  yet 


18  Watrous  v.  Blair,  32  Iowa,  58. 

10  Pangborn  v.  WestJake,  36 
Iowa,  546. 

^0  Setter  v.  Alvey,  15  Kan.  157. 
In  this  case  a  town  company,  the 
occupants,  and  all  interested  in  the 
town  site,  made  a  contract  with  a 
county  to  deed  it  certain  lots  on 
the  town  site,  provided  the  county 
seat  was  located  at  the  town,  and 
afterward  the  county  seat  was  so 
located  and  the  lots  deeded;  held, 
that  neither  the  town  company,  the 
occupants,  the  parties  interested  in 
the  town  site,  nor  one  claiming 
under  them,  could  avoid  the  deed 
or  recover  the  land. 

21  As  where  plaintiff  and  defen- 
dant agreed  in  writing  that  on  a 
partition  sale  of  certain  real  estate, 
of  three-sevenths  of  which  the  de- 
fendant was  owner  as  trustee  for 


infants,  the  defendant  would  not 
bid,  and  that,  if  the  plaintiff  should 
become  the  purchaser,  plaintiff 
should  pay  four-sevenths  and  de- 
fendant three-sevenths  of  the  pur- 
chase money,  and  that  the  property 
should  be  divided  between  them 
on  a  line  agreed  upon,  held,  that 
such  an  agreement  was  void  as 
against  public  policy,  and  that 
plaintiff,  having  purchased  at  the 
sale  and  taken  a  conveyance,  could 
sustain  an  action  of  ejectment  to 
recover  from  defendant  the  part 
which  the  latter  claimed  under  the 
agreement,  and  of  which  he  was  in 
possession,  notwithstanding  the 
fact  that  plaintiff  had  received 
from  defendant  his  share  of  the 
purchase  price,  and  had  made  no 
offer  to  refund  it;  further,  that 
plaintiff  was  not  estopped  from  set- 


192  VALIDITY  OF  LAND  CONTRACTS. 

the  principles  which  support  the  theory  have  alwaj's  remained 
unchanged  and  are,  from  their  nature,  unchangeable.  Thus, 
public  polic}'  is  only  variable  in  so  far  as  the  habits,  capaci- 
ties and  opportunities  of  the  public  have  become  varied  and 
complex;  the  relations  of  society  change  with  the  times;  new 
laws  with  respect  to  public  and  private  rights  are  enacted; 
new  definitions  of  reciprocal  duties  and  obligations  are  pro- 
mulgated, and  so,  while  public  X)olicy  may  be  said  to  change  in 
compliance  with  the  changing  features  of  the  law,  yet  such 
changes  are,  after  all,  but  new  applications  of  old  principles, 
made  to  meet  the  varying  exigencies  of  the  times. 

As  a  general  proposition  it  may  be  said,  that  whatever  tends 
to  injustice  or  oppression,  restraint  of  liberty,  restraint  of 
legal  right;  whatever  tends  to  the  obstruction  of  justice,  a 
violation  of  a  statute,  or  the  obstruction  or  perversion  of  the 
administration  of  the  law;  whatever  tends  to  interfere  with 
or  control  the  administration  of  the  laws  or  other  ofificial 
action,  whenever  embodied  in,  and  made  the  subject  of,  a  con- 
tract, is  against  public  policy,  and  the  contract,  for  that  rea- 
son, will  be  void,  and  incapable  of  enforcement.  All  contracts 
prejudicial  to  the  interest  of  the  public,  whenever  the  statute 
or  any  known  rule  of  law  requires  it,  are  void.22 

This  is  true  not  only  with  respect  to  contracts  which  involve 
the  commission  of  an  illegal  act,  but  applies  as  well  to  agree- 
ments which  contravene  the  spirit  and  policy  of  the  laws  by 
an  attempt  to  evade  their  efFect.^s 

To  make  a  contract  unlawful  as  being  against  public  policy 
and  law  it  must  be  manifestly  and  directly  so;  and  it  is  not 
enough  that  the  contract  is  connected  with  some  violation  of 
the  law,  however  remotely  or  indirectly.^^  The  illegality  must 
form  a  part  of  the  consideration,  or  in  some  way  furnish  the 

ting  up  the  illegality  of  the  con-  pose  of  selling  it  to  a  person  who 

tract,  and  being  the  legal  owner  of  would   not  be   competent,  by   law, 

the   premises,   was   entitled   to   re-  to  enter  and  purchase  it  himself, 

cover  the  portion  claimed.  Wheeler  Brake  v.  Ballou,  19  Kan.  397.     See 

V.  Wheeler,  5  Lans.  (N.  Y.)  355.  also  in  support  of  the  general  prop- 

22  Brooks  V.  Cooper,  50  N.  J.  L.  osition.  Cannon  v.  Cannon,  26  N.  J. 
761;  Consumers  Oil  Co.  v.  Nunne-  Eq.  316;  Blasdell  v.  Fowle,  120 
maker,  142  Ind.  560.  Mass.  447. 

23  Such  as  an  agreement  that  a  24  Bier  v.  Dozier,  24  Gratt. 
person  shall  enter  and  purchase  a  (Va.)  1. 

tract  of  public  lands  for  the  pur- 


GENERALLY    CONSIDERED. 


193 


motive  for  the  contract.  Thus,  a  contract  for  the  sale  of  land 
dcpcndinjT^  on  the  result  of  an  election,  on  the  question  of  a 
park  in  tlu'  locality,  in  a  certain  way,  as  a  condition  ineccdent 
to  its  taking  effect,  such  result  beinj,'  an  essential  part  of  the 
consideration,  is  void  upon  j^rounds  of  public  j)olicy.25 

The  rule  that  contracts  which  contiavenc  public  policy  and 
the  law  are  void,  and  that  courts  will  never  lend  their  aid  to 
enforce  them,  has  been  held  to  apply  where  the  intention  of 
one  of  the  parties  is  to  enable  the  other  to  violate  the  law;-* 
yet,  in  transactions  relating  to  the  sale  of  land,  this  rule  must 
be  understood  as  qualified,  to  some  extent  at  least,  by  the  rule 
last  stated,  and  a  contract  of  sale  for  an  unlawful  purpose  is 
not,  for  that  reason,  void,  unless  forbidden  by  statute.  Thus, 
a  contract  to  sell  a  house  to  one  who  intends  to  keep  it  as  a 
bawdy-house  is  not  illegal  thereby  because  the  vendor  knows 
the  intention.27 

§  146.  Agreements  void  in  part.  The  rule  is  that  if  any 
part  of  the  entire  consideration  for  a  j)romise  or  any  part  of 
the  promise  be  illegal,  whether  by  statute  or  at  common  law, 
the  whole  contract  is  void,  if  the  illegality  form  any  part  of 


'^•>  So  held  where  the  purchasers 
of  land  deposited  with  a  stake- 
holder their  checks  for  $5,000  in 
favor  of  the  vendor's  agent,  the 
parties  signing  an  agreement  that 
the  checks  should  be  delivered  to 
the  payee  in  case  a  vote  to  be  taken 
on  that  day  in  West  Chicago  should 
be  in  favor  of  what  was  known  as 
the  West  Park  bill;  but,  in  case  the 
majority  of  the  votes  should  be 
cast  against  said  bill,  then  the 
checks  were  to  be  delivered  to  the 
drawers.  Merchants',  etc.  Co.  v. 
Goodrich,  75  111.  554. 

2«  Tatum  V.  Kelley,  25  Ark.  209. 

27  Sprague  v.  Rooney,  82  Mo.  493; 
but  compare  Sprague  v.  Rooney, 
104  Mo.  349.  No  nation  or  state  is 
bound  to  recognize  or  enforce 
contracts  which  are  injurious 
to  its  interests,  the  welfare  of 
its  people,  or  which  are  in 
18 


fraud  or  violation  of  its  own 
laws.  Hill  V.  Spear,  50  N.  H.  253; 
Gaylord  v.  Soragen,  32  Vt.  110; 
Feineman  v.  Sachs,  33  Kan.  621. 
Yet  the  mere  knowledge  of  the 
unlawful  intent  of  the  vendee 
would  not  debar  a  vendor  from  the 
enforcement  of  his  contract  so  long 
as  he  did  not  in  any  way  aid  the 
vendee  in  the  violation  of  law.  This 
has  always  been  the  recognized 
rule  in  regard  to  sales  of  chattels, 
and  the  principle  is  the  same  in  fls 
application  to  real  property.  Wal- 
lace V.  Lark,  12  S.  C.  576;  Tracy  v. 
Talmage.  14  N.  Y.  162;  Henderson 
V.  Waggoner,  2  Lea  (Tenn.),  133; 
Rose  V.  Mitchell.  6  Colo.  102; 
Brunswick  v.  Valleau,  50  Iowa, 
120;  Michael  v.  Bacon,  49  Mo.  474. 
The  vendor  must  do  something  in 
furtherance  of  the  vendee's  design 
to   violate   the   law;    but   positive 


194  VALIDITY   OF  LAND   CONTRACTS. 

the  contract  itself.^^  But  if  a  contract,  part  of  which  is  repug- 
nant to  law  and  aj^ainst  public  policy  while  the  other  part  is 
not,  can  be  divided,  so  much  as  is  unexceptionable  may  be 
enforced  ;25>  yet  a  separation  of  the  good  consideration  from 
that  which  is  illegal  will  be  attempted  only  in  those  cases  in 
which  the  party  seeking  to  enforce  the  contract  is  not  the 
wrongdoer.  Where  both  parties  are  in  equal  fault,  no  remedy 
can  be  had  in  a  court  of  justice  on  an  illegal  transaction.^'' 

Where  the  contract  is  for  the  doing  of  two  or  more  things 
which  are  entirely  distinct,  and  one  is  repugnant  to  law  while 
the  others  are  legal,  the  illegality  of  the  one  stipulation  will 
not  ordinarily  affect  the  other.-"^! 

§  147.  Allotments  by  chance.  It  is  not  uncommon  for  a 
number  of  persons  to  contribute  jointly  to  the  purchase  of 
property  to  be  afterwards  divided  between  them  by  some 
form  of  allotment  depending  upon  chance.  Now  it  is  quite 
proper  for  persons  to  agree  to  purchase  land  to  be  afterwards 
divided  and  distributed  among  them  in  such  manner  as  they 
may  thereafter  agree  upon,^^  13^^  jf  such  contract  subse- 
quently becomes  tainted  by  the  vice  of  a  lottery,  then,  notwith- 
standing its  innocent  inception,  the  entire  agreement  becomes 
invalid  and  uneuforceable,^^  while  if  the  original  agreement  is 
for  a  purchase  and  distribution  by  drawings  or  chance  allot- 
ments it  is  void  from  the  beginning.^* 

§  148.  Sunday  contracts.  Probably  no  proposition  of  law  is 
more  widely  known  or  generally  accepted  than  that  contained 

acts  in  aid  of  the  unlawful  purpose,  29  Hanauer  v.  Gray,  25  Ark.  350; 

though  slight,  are  sufficient.  Fisher  Clements  v.  Morston,  52  N.  H.  31. 

V.  Lord,  63  N.  H.  514.  »o  Saratoga  Bank  v.  King,  44  N. 

28  Kattwitz  V.  Alexander,  34  Tex.  Y.  87. 

689;   Chandler  v.  Johnson,  39  Ga.  3i  Erie  R'y  Co.  v.  Express  Co.  35 

85;   Saratoga  Bank  v.  King,  44  N.  N.  J.  L.  240. 

Y.  87;   Clements  v.  Morston,  52  N.  32  Emshwiler   v.   Tyner,    21    Ind. 

H.  31;   Fuller  v.  Reed,  38  Cal.  99.  App.  347. 

As  where  A.  agreed  to  sell  B.  for  33  Emshwiler   v.   Tyner,   21   Ind.. 

a  gross  sum  a  lot  and  building  and  App.  347;   Rothrock  v.  Perkinson, 

a  quantity  of  liquor.     The  sale  of  61  Ind.  29. 

the  liquor  would  have  been  illegal.  34  Branham  v.  Stallings,  21  Colo. 

Held,  that  the  contract  being  indi-  211;   Den  v.  Shotwell,  23  N.  J.  L. 

visible,   a  suit  for  a  specific  per-  470;  and  see  Dunn  v.  People,  40  111. 

formance  could  not  be  based  upon  465;   Thacher  v.  Morris,  11  N.  Y. 

it.    Gerlach  v.  Skinner,  34  Kan.  86.  437. 


GENERALLY    CONSIDERED.  195 

in  the  oft-repeated  statement,  "a  contract  made  on  Sunday  is 
void."  It  is  one  of  the  first  lejjjal  ruh's  tauj^ht  to  the  student, 
and  from  frequent  and  long-continued  iteration  lias  become 
a  fixed  fact  in  the  mind  of  every  layman.  A  long  series  of 
judicial  decisions  give  stability  to  the  proposition,-''"'  and  it  has 
generally  come  to  be  considered  as  an  unassailable,  unbend- 
ing and  impregnable  rule.  And  yet,  a  contract  made  upon 
Sunday  is  not  void  at  common  law,-^"  for  by  that  law  Sunday 
differed  from  no  other  day  except  that  it  was  dies  non  juridi- 
cns.^''  The  doctrine  that  contracts  made  on  Sunday  are  void 
depends,  therefore,  altogether  on  statutory  enactments.  Stat- 
utes relating  to  the  observance  of  Sunday  are  in  force  in  many 
of  the  states,^**  yet  these  statutes  vary  both  in  language  and 
substance;  and  the  decisions  of  the  various  courts,  even 
though  presenting  an  apparent  uniformity,  have  nevertheless 
been  based  mainly  on  the  phraseology  of  their  owm  several 
statutes.  The  statutes  in  force  in  a  majority  of  the  states  are 
based  upon  the  English  statute  of  21)  Car.  II.,  ch.  257,  which 
l)rohibited  all  "worldly  labor,  business  or  work  on  the  Lord's 
day,"  excepting  only  work  of  charity  and  necessity.  Where 
this  statute  has  been  re-enacted,  either  in  terms  or  substan- 

35  Header  v.  White,  66  Me.  90;  sit  on  Sunday.  The  early  Chris- 
Tucker  V.  West,  29  Ark.  386;  Ryno  tians  down  to  as  late  as  the  sixth 
V.  Darby,  20  N.  J.  Eq.  231;  Finn  v.  century  used  all  days  alike  for  the 
Donahue,  35  Conn.  216;  Pate  v.  hearing  of  causes,  even  Sunday  it- 
Wright,  30  Ind.  476;  Sayre  v.  self;  but  in  the  year  517  a  canon 
Wheeler,  32  Iowa,  559;  Holcomb  v.  was  promulgated  exempting  Sun- 
Donley,  51  Vt.  428;  Stevens  v.  days.  Other  canons  were  adopted 
Wood,  127  Mass.  123;  Ellis  v.  Ham-  in  subsequent  years,  setting  apart 
mond,  57  Ga.  179;  Brimhall  v.  Van  other  days.  These  canons  were  all 
Campen,  8  Minn.  13.  observed  by  the  Saxon  kings  and 

3«  Horacek    v.    Keebler,     5    Neb.  through   confirmation   by  William 

355;    Richmond  v.  Moore,   107  111.  the  Conqueror  and   Henry  II.  be- 

429;    and   see    the    English   cases,  came  a  part  of  the  common  law  of 

Comyns  v.  Bayer,  Cro.   Eliz.  485;  England.    Not  only  was  Sunday  a 

Rex  V.   Brotherton,   Strange,   702;  nonjuridical  day  but  the  feast  of 

King  v.  Whitnash,  7  B.  &  C.  596;  the  Ascension,  of  St.  John  the  Bap- 

Drury  v.  Defontaine,  1  Taunt.  136.  tist,  the  Purification  of  the  B.  V. 

In  this  case  Lord  Mansfield  said:  M.,  and  All   Saints  and  All   Souls 

"It  does  not  appear  that  the  com-  days  as  well.  See  Swann  v.  Broome, 

mon  law  ever  considered  those  con-  3  Burrow  (Eng.  K.  B.),  1595. 

tracts  as  void  which  were  made  on  s"^  In  a  number  of  western  states 

Sunday."  there  are  not  and  never  have  been 

37  Anciently,  however,  courts  did  any  Sunday  laws. 


19G  VALIDITY  OF  LAND  CONTRACTS. 

tially,  the  rule  first  stated  will  probably  apply,  and  a  contract 
executed  on  that  day  will  be  incapable  of  enforcement.  But 
where  the  statute  does  not  seek  to  enforce  the  performance  of 
a  religious  duty,  but  simply  to  preserve  the  peace  and  good 
order  of  society  by  the  prohibition  of  labor  on  Sunday,  a  con- 
tract entered  into  on  that  day  would  possess  the  same  validity 
as  one  made  upon  a  secular  day;  for  the  making  of  a  contract 
is  not  common  labor,^^  nor  is  it  in  derogation  of  a  statute 
which  does  not  in  terms  prohibit  business  as  well  as  labor  ;4o 
and  generally,  under  statutes  of  the  character  just  mentioned, 
a  contract  made  on  Sunday  in  matters  of  business  other  than 
such  as  prohibited  by  statute  will  be  valid.^i 

But  although  contracts  made  upon  Sunday  may  be  illegal 
in  the  sense  that  no  action  based  upon  such  contracts  can  be 
maintained  either  to  enforce  their  obligations  or  to  secure 
their  fruits,  they  are  not  altogether  inoperative.  After  they 
have  been  executed  by  the  parties  the  same  principle  of  public 
policy  which  leads  courts  to  refuse  to  act  when  called  upon  to 
enforce  them  will  prevent  the  court  from  acting  to  relieve 
either  party  from  the  consequences  of  the  transaction,  the  pur- 
pose, however,  not  being  to  validate  the  contract,  but  to 
deprive  all  the  parties,  they  being  in.  pari  delicto,  of  all  rights 
either  of  enforcement  or  relief.^^ 

It  is  further  a  general  rule  of  law  that  void  contracts  are 
not  susceptible  of  ratification ;  but  it  has  been  held  in  numer- 
ous instances  that  contracts  not  otherwise  obnoxious,  but 
void  only  because  made  or  executed  on  Sunday,  form  an  excep- 
tion to  this  general  rule,  and  may  be  rendered  valid  and  effec- 

39  Bloom  V.  Richards,  2  Ohio  St.  pointed  out  by  the  statute  itself. 

387,   in   which   it   was   held   that.  See  Love  v.  Wells,  25  Ind.  503 ;  AI- 

under  a  statute  prohibiting  labor,  len  v.  Deming,  14  N.  H.  133;  Towle 

etc.,   entering  into  a  contract  for  v.  Larrabee,  26  Me.  464. 

the  sale  of  land  was  not,  in  the  4o  Richmond   v.    Moore,   107    111. 

sense  of  the  statute,  common  labor.  429;    Roberts   v.   Barnes,   127   Mo. 

To    the    same    effect,  Horacek    v.  405. 

Keebler,  5  Neb.  355;   Richmond  v.  -ii  See  Johnson  v.  Brown,  13  Kan. 

Moore,     107     111.    429;     Sayles    v.  529;    Moore    v.    Murdock,    26    Cal. 

Smith,  12  "Wend.  (N.  Y.)  57.   Some  514;  Hellams  v.  Abercrombie,  15  S. 

courts  construe  the  statute  prohib-  C.  110;   Kaufman  v.  Ham,  30  Mo. 

iting  "common  labor"  as  an  inhibi-  387. 

tion  of  every  description  of  secular  42  Meyers  v.  Meinrath,  101  Mass. 

business  not  within  the  exceptions  336;  Ellis  v.  Hammond,  57  Ga.  179. 


GENERALLY    CONSIDERED.  197 

tive  by  subsequent  ratification.'''*  Again,  a  deed  takes  effect 
only  from  tlie  time  of  its  delivery,  and  in  many  res])ects  the 
same  rule  is  aitplicable  to  contracts  and  agi-eements  which 
precede  conveyance.  A  deed  may  be  dated,  sif^ned  and  even 
acknowledged  on  Sunday;  but  if  not  delivered  until  a  subse- 
(lucnt  day  il  is  valid,  whatever  may  be  the  elTect  upon  the 
acknowledgment.^^ 

§  149.  Agreements  to  convey  by  will.  Ordinarily  when  a 
contract  of  sale  is  entered  into  the  intention  of  the  parties  is 
that  it  shall  be  consummated  by  the  delivery  of  a  deed.  But 
parties  may  stipulate  for  any  kind  of  conveyance,  and  an 
almost  unbroken  line  of  precedents  confirm  the  doctrine  that 
<me  may  make  a  valid  agreement  binding  himself  to  make  a 
particular  disposition  of  liis  property  by  last  will  and  testa- 
ment, and  that  specific  performance  of  such  agreements  will 
be  decreed  in  all  proper  cases.^^ 

The  law  permits  every  man  to  dispose  of  his  own  property  at 
his  own  pleasure  and  in  any  manner  best  suited  to  himself; 
he  may  contract  to  convey  by  deed  to  be  made  at  some  future 
time  or  upon  the  happening  of  some  contingency  or  event,  and 
with  equal  propriety  he  may  agree  to  perform  the  same  dut}' 
by  testamentary  devise.  It  may  not  be  wisdom  for  a  man  thus 
to  embarrass  himself  as  to  the  final  disposition  of  his  property'. 
But  with  the  wisdom  or  foolishness  of  men's  contracts  the  law 
has  no  concern;  it  penults  them  to  be  the  disposers  of  their 
own  fortunes,  and  the  sole  and  best  judges  as  to  the  time  and 
manner  in  which  same  shall  be  accomplished.  If,  therefore, 
such  an  agreement  is  free  from  fraud  or  undue  influence  and 
made  upon  a  sufficient  consideration,  it  may  be  valid,  and,  if 
otherwise  unobjectionable,  will  be  enforced  by  comjx^lling  a 
conveyance  from  the  heirs  of  the  promisor  or  purchasers  with, 
notice  from  him  in  his  life-time.*^ 

43  Banks  v.  Werts,  13  Ind.  203;  45  Gupton  v.  Gupton.  47  Mo.  37; 

Adams  v.  Gay,  19  Vt.  353.  "Wright  v.   Wright,   31   Mich.   380; 

"Love  V.  Wells,  25  Ind.  503.  It  Logan  v.  McGinnis,  12  Pa.  St.  27; 
has  been  held  that  the  fact  that  Parsell  v.  Stryker,  41  N.  Y.  480; 
the  acknowledgment  was  taken  on  Maddox  v.  Rowe,  23  Ga.  431;  Car- 
Sunday  neither  impairs  nor  michael  v.  Carmichael,  72  Mich.  76. 
strengthens  the  integrity  of  the  in-  ^«  Parsell  v.  Stryker,  41  N.  Y. 
strument.  See  Roberts  v.  Barnes,  480. 
127  Mo.  405. 


198  VAIilDITY  OF  LAND  CONTRACTS. 

§  150.  Contracts  procured  by  fraud.  Where  a  contract  has 
been  entered  into  through  the  fraudulent  artifice  of  another, 
such  contract  is  not  ipso  facto  void.  It  is  voidable  only,  and 
may  become  void  at  the  election  of  the  defrauded  party. 
Should  he  decide  to  treat  it  as  valid  it  will  have  the  same 
effect  and  be  governed  by  the  same  rules  as  other  contracts. 
If  a  party  to  such  a  contract  desires  to  avail  himself  of  its  inva- 
lidity, he  must  not  only  disaffinn  the  same  at  the  earliest  prac- 
tical moment  after  discovery  of  the  fraud  that  has  been  prac- 
ticed upon  him,  but  return  or  offer  to  return  all  that  has  been 
received  under  it.  He  cannot,  with  knowledge  of  the  fraud, 
take  any  benefit  under  the  contract,  or  change  the  condition 
of  the  property,  and  then  rejjudiate  the  contract;  for  the 
taking  of  a  benefit  is  an  election  to  ratify  it.  He  has  the  option 
to  affirm  or  disaflirm,  but  he  cannot  do  both.^'^ 

§  151.  Ante-nuptial  contracts.  Executory  agreements  made 
between  a  man  and  a  woman  who  afterwards  marry,  by  which 
it  is  attempted  to  regulate  and  control  the  interest  which  each 
of  the  parties  to  the  marriage  shall  take  in  the  property  of  the 
other,  during  coverture  or  after  death,  are  among  the  gener- 
ally-recognized yet  unfamiliar  forms  of  land  contracts.  Such 
agreements  were  treated  as  void  at  common  law;  but  equity, 
in  the  application  of  its  conscientious  principles,  has  ever 
regarded  them  as  valid  and  binding  and  capable  of  enforce- 
ment against  either  at  the  suit  of  the  other.  They  are  now 
usually  provided  for  by  statute,  and,  like  dower,  are  favored 
by  the  courts  and  enforced  according  to  the  intention  of  the 
parties  whenever  the  contingency  provided  by  the  contract 
arises. 

No  special  formality  is  requisite  in  such  instrum^^nts;*^  and, 
in  order  to  effectuate  the  intention  of  the  parties,  courts  of 
equity  will  impose  a  trust  upon  the  property  agreed  to  be  con- 
veyed commensurate  with  the  obligations  of  the  contract,  or 
will  decree  their  specific  performance,  and  when  such  relief  is 
inadequate  or  impracticable  from  the  situation  of  the  property 

47  Masson  v.  Bovet,  1  Denio  (N.  be  established  by  letters  between 
Y.),  69;  Cobb  v.  Hatfield,  46  N.  Y.  the  parties  written  before  mar- 
533.  riage.     Peck  v.  Vandemark,  99  N. 

48  An  ante-nuptial  contract  may  Y.  29. 


GENERALLY    CONSIDERED.  199 

or  tlio  cliaraeter  of  the  contract,  will  award  damages  for  its 
breach.*'-' 

§  152.  Post-nuptial  contracts.  At  coiiiniou  law  a  married 
woman  was  not  allowed  to  possess  property  independent  of 
her  husband;  and,  as  the  law  regarded  husband  and  wife  as 
but  one  person,  it  did  not  permit  them  to  change  their  rela- 
tions by  entering  into  a  contract  between  themselves.  But 
in  equity  a  wife  is  permitted  to  enter  into  a  contract  with  her 
husband,  for  a  valuable  consideration,  for  the  transfer  of  prop- 
erty from  him  to  her;  and  courts  will  enforce  the  provisions 
of  the  same  where  any  meritorious  purpose  is  involved.^'' 

Since  the  passage  of  the  statute  now  in  force  in  nearly  every 
state  removing  common-law  restrictions  and  destroying  the 
common-law  unity  of  person,  married  women  may  contract 
with  their  husbands,  even  at  law;  and  contracts  so  made  will 
for  most  purposes  be  regarded  and  treated  in  the  same  light 
as  contracts  between  other  persons.^^ 

40  Peck  V.  Vandemark,  99  N.  Y.  the  operation  of  charging  in  that 

29;    Johnson  v.  Spicer,   107   N.   Y.  form  which  the  power  allows.     It 

185.      Upon     the     principle     that,  follows,    therefore,    that    however 

where  a  person  acts  for  a  valuable  the   intent  be   shown,   if  it  be   in 

consideration,    as    upon    marriage,  writing   the   court  will,  in  aid   of 

he  is  understood  in  equity  to  en-  the  intention,  supply  the  defects  in 

gage  with  the  person  with  whom  the    mode    of    execution    in    favor 

he  is  dealing,  to  make  the  instru-  of  the  jointress;    so  that  whether 

ment   as   effectual  as   he   is  able;  the  intent  to  execute  the  power  be 

and  whenever  this  is  the  case  there  by  letter,  memorandum,  will,  arti- 

is  nothing  in  any  of  the  author-  cles  or  covenant,  a  court  of  equity 

ities  to  raise  a  doubt  that  it  shall  will  aid  the  jointress,  and  supply 

have  effect   so   far  as  the   person  all  omissions.    Bright  on  Husband 

executing   it   has   the   power;    and  and  Wife,  471. 

where    the    nature    of    the    instru-  '-o  Livingstone   v.   T.,ivingstone,   2 

ment  is  contrary  to  what  the  per-  Johns.  Ch.  (N.  Y.)  537;  Garlick  v. 

son    prescribes,    but    demonstrates  Strong,  3  Paige  (N.  Y.),  440. 

an  intent  to  charge,  it  shall  have  &i  See  §  71,  72,  afite. 


Article  II.    As  Affected  by  the  Statute  of  Frauds. 


153. 

General  effect  of  the   stat- 

§163. 

ute. 

164. 

154. 

Conflict  of  laws. 

165. 

155. 

Entire    contract,     void     in 

166, 

part. 

167. 

156. 

Defense  of  the  statute. 

168. 

157. 

What  contracts  must  be  in 

169. 

writing. 

170. 

158. 

Incorporeal    hereditaments. 

159. 

License  to  flood  lands. 

171, 

160. 

License  for  right  of  way. 

161. 

The  produce  of  land. 

172. 

162. 

Standing  trees. 

173. 

Growing  crops. 
Ruined  walls  and  buildings. 
Buildings  to  be  removed. 
Partition  fence. 
Parol  reservations. 
Agreements  to  exchange. 
Collateral  agreements. 
Partnership  agreements  for 

dealing  in  lands. 
Memorandum    for    sale    of 

partnership  lands. 
Ante-nuptial  agreements. 
The  description. 


§  153.  General  effect  of  statute.  As  a  general  rule,  a  con- 
tract void  by  tke  statute  of  frauds  is  void  for  all  purposes;  it 
confers  no  rights  and  creates  no  obligations  as  between  the 
parties  to  it,  and  no  claim  can  be  founded  upon  it  as  against 
third  persons.  It  is  incapable  of  enforcement,  either  directly 
or  indirectly.^  It  cannot  be  made  effectual  by  estoppel,  merely 
because  it  has  been  acted  upon  by  one  of  the  parties  and  not 
performed  by  the  other,^  for  there  is  no  exception  contained 
in  the  statute,  and  courts  have  no  right  to  create  any;^  and 
where  the  contract  is  entire,  and  one  part  is  void  for  non-com- 
I)liance  with  the  statute,  the  whole  is  void.^ 

But  contracts  within  the  statute  of  frauds  are  not  illegal 
unless  evidenced  by  a  writing.    Their  invalidity  results  from  a 


1  Dung  v.  Parker,  32  N.  Y.  492. 

2  Brightman  v.  Hicks,  108  Mass. 
246;  Wheeler  v.  Frankenthal,  78 
111,  124;  McElroy  v.  Ludlum,  32  N. 
J.  Eq.  828, 

3  Hairston  v.  Jaudon,  42  Miss. 
380, 

4  Fuller  V,  Reed,  38  Cal.  99; 
Hobbs  V.  Wetherwax,  38  How.  Pr. 
(N.  Y.)  385.  A  part  performance 
of  a  contract  void  by  the  statute 
of  frauds  may  render  it  binding 


and  valid  as  far  as  that  extends; 
but  it  can  have  no  effect  upon  any 
remaining  stipulations,  still  re- 
maining executory.  As  to  those 
the  statute  remains  operative,  de- 
claring them  void;  for  if  the  power 
existed  to  maintain  an  action  for 
the  non-performance  of  one  por- 
tion of  a  contract  void  by  the  stat- 
ute, it  is  difficult  to  see  what  would 
stand  in  the  way  of  allowing  the 
same  thing  to  be  done  where  an 


200 


AS   AFFECTED   BY   STATUTE   OF  FRAUDS.  201 

non-compliance  with  prescribed  metliods  of  proof,  and  they 
are  invalid  ouly  to  the  extent  that  they  may  not  be  enforced 
against  a  defendant  without  writing — an  ininiiinity  which  the 
defendant  may  waive.  If  the  defendant  does  not  see  fit  to 
avail  liimself  of  the  protection  tlni.s  alTorded,  or  through 
inadvertence  or  neglect  fails  to  properly  object  to  testimony 
of  parol  agreements  when  offered,  he  will  be  held  to  have 
waived  such  right  after  the  testimony  has  been  closed,  and 
cannot  be  heard  to  comidain  that  the  agreement  was  void  by 
reason  of  the  statute  of  frauds.'"'  So,  also,  a  parol  contract 
required  to  be  in  writing  by  the  statute,  if  treated  as  obliga- 
tory by  the  parties  until  it  is  executed,  is  not  void;^  nor  does 
the  statute  restrict  parties  from  the  voluntary  performance  of 
their  i)arol  engagements. 

Such  is  the  etfect  of  the  statute  at  law.  In  equity  the  rules 
last  stated  have  been  infringed,  and  in  cases  of  part  perform- 
ance a  contract  void  at  law  has  been  permitted  to  have  effect 
where  a  denial  of  such  relief  would  manifestly  tend  to  encour- 
age fraud.  The  wisdom  of  the  innovation  has  often  been 
doubted,  but  the  practice  is  now  too  well  established  to  be 
attacked.  This  phase  of  the  subject  will  be  fully  considered  in 
treating  upon  the  equitable  remedies  of  the  parties,  and  need 
not  be  further  alluded  to  here. 

§  154.  Conflict  of  laws.  As  a  general  rule,  a  contract  valid 
in  the  state  where  it  is  executed  may  be  enforced  elsewhere, 
under  the  general  comity  which  prevails  between  the  states.'^ 
So,  on  the  other  hand,  an  agreement  void  or  voidable  by  the 
statute  of  frauds  of  the  state  in  which  it  was  made  cannot  be 
enforced  in  another  state,  notwithstanding  that  had  it  been 
made  in  the  latter  state  it  would  have  been  valid  and  enforce- 
able therein.^ 

§  155.  Entire  contract,  void  in  part.  The  rule  is  that  where 
a  contract  is  entire,  and  one  part  is  void  for  non-compliance 


entire  omission  to  perform  might  124;  Aicardi  v.  Craig,  42  Ala.  311. 

be  shown  by  the  evidence.    Weir  ^  Roundtree  v.  Baker,  52  111.  241. 

V.  Hill,  2  Lans.  (N.  Y.)  278.  «  Cochran  v.  Ward.  5  Ind.  App. 

->  Montgomery  v.  Edwards,  46  Vt.  89;  Buckley  v.  Humason,  50  Minn. 

151.  195;   Holderman  v.  Pond.  45  Kan. 

0  Wheeler  v.  Frankenthal.  78  111.  410. 


203 


VALIDITY  OF  LAND  CONTRACTS. 


with  the  statute  of  frauds,  the  whole  is  void.»    And  this  rule 
seems  to  be  without  exceptions.^*^ 

§  156.  Defense  of  the  statute — By  whom  available.  The 
defense  of  the  statute  of  frauds  is  personal,  and  can  only  be 
relied  on  by  the  parties  or  their  privies.^i  Strangers  to  the 
transaction  cannot  impeach  it  by  showing  that  it  is  void  for 
statutory  non-compliance,^^  and  the  parties  may  waive  the 
defense  at  their  pleasure.^'* 

§  157.  What  contracts  must  be  in  writing.  The  statute  in 
general  terms  provides  that  no  action  shall  be  brought  to 
charge  any  person  upon  any  contract  for  the  sale  of  lands,  or 
any  interest  in  or  concerning  them,  unless  such  contract  shall 
be  evidenced  by  a  writing;  and  this  general  statement  has 
been  the  subject  of  much  comment,  fine  drawn  distinctions, 
and  not  a  little  inharmonious  decision.  The  interest  thus  pro- 
vided for  extends  to  cover  every  species  of  claim  from  the  full 
legal  title  to  the  faintest  equity ,i^  while  the  rule  applies  to  all 


9  As  where  R.  orally  agreed  with 
F.  to  give  him  a  certain  portion  of 
the  purchase  money,  and  also  a 
certain  parcel  of  land  for  his  ser- 
vices in  effecting  the  sale  of  R.'s 
land,  but  no  memorandum  was 
made  of  the  promise;  held,  that 
the  whole  contract  was  void,  and 
no  action  would  lie  either  for  the 
money  or  the  land.  Fuller  v.  Reed, 
38  Cal.  99.  And  so  where  a  verbal 
agreement  was  made  for  the  trans- 
fer of  a  farm,  and  it  was  also 
agreed  that  the  wheat  growing  on 
the  farm  shovild  be  transferred, 
held,  the  former  agreement  being 
void  for  want  of  a  writing,  the  lat- 
ter being  connected  with  it,  was 
also  void,  though  otherwise  it 
might  not  have  been.  Jackson  v. 
Evans,  44  Mich.  510;  Clark  v. 
Davidson,  53  Wis.  317;  Becker  v. 
Mason,  30  Kan.   697. 

10  Meyers  v.  Schemp,  67  111. 
469. 


11  Chicago  Dock  Co.  v.  Kinzie,  49 
111.  289. 

12  Richards  v.  Cunningham,  10 
Neb.  417;  Davis  v.  Inscoe,  84  N.  C. 
396. 

13  Montgomery  v.  Edwards,  46 
Vt.  151. 

1*  Holmes  V.  Holmes,  86  N.  C. 
205;  Lillie  v.  Dunbar,  62  Wis. 
198;  Richards  v.  Richards,  9  Gray, 
(Mass.),  313.  The  sale  of  an  equity 
of  redemption  is  within  the  stat- 
ute. Scott  V.  McFarland,  13  Mass. 
309 — an  agreement  for  the  release 
of  dower  by  widow;  Shotwell  v. 
Sedam,  3  Ohio,  5;  Gordon  v.  Gor- 
don, 56  N.  H.  170;  Wright  v.  De 
Groff,  14  Mich.  164 — an  agreement 
to  transfer  a  mining  claim;  Cop- 
per Hill  Mining  Co.  v.  Spencer,  25 
Cal.  18 — an  agreement  for  the  as- 
signment of  an  executory  land  con- 
tract; Smith  V.  Burnham,  3  Sumn. 
(C.  Ct.)  435 — an  agreement  for  the 
transfer  of  a  lease;  Kingsley  v. 
Siebrecht,  92  Me.  23. 


AS  AFFECTED  BY  STATUTE  OF  FRAUDS. 


;i03 


parties  who  assuinc  lo  act,  whether  on  their  own  behalf  or  on 
behalf  of  another.'-''' 

An  interest  in  continj^cnt  profits  arising  from  a  sale  of  real 
estate  to  be  made  thereafter  does  not  amount  to  an  interest 
in  the  land  itself  within  the  meanin<^  of  the  statute ;i*'  and  the 
same  is  true  {jjenerally  of  aj^reemenls  for  the  payment  of  money 
based  upon  the  future  sales  or  purchases  of  property.'^  lint 
even  contracts  for  the  payment  of  money  only  may  and  often 
do  involve,  directly  or  indirectly,  some  estate  or  interest  in 
land;  and  when  such  is  the  case,  such  promises  must  be  ev' 
denced  by  writing;,  notwithstanding  that  they  do  not  prof.  . 
to  be  for  the  sale  or  conveyance  of  land.^** 

§  158.  Incorporeal  hereditaments.  An  easement,  license  or 
privilege  may  be,  and  often  is,  such  an  interest  in  land  as  is 
contemj)lated  by  the  statute;  and,  unless  the  grant  of  same  is 


15  A  contract  to  procure  the  con- 
veyance of  an  equity  held  by  a 
third  person  is  within  the  statute 
of  frauds  as  a  contract  for  the  sale 
of  an  interest  in  lands,  and  is  void 
if  not  in  writing.  Rawdon  v. 
Dodge,  40  Mich.  697.  An  agree- 
ment with  a  debtor  to  purchase 
his  land  at  execution  sale,  and  then 
convey  it  to  him,  is  within  the 
statute.  Harrison  v.  Bailey,  14  S. 
C.  334.  And  see  Rucker  v.  Steele- 
man,  73  Ind.  396;  Bauman  v.  Holz- 
hausen,  26  Hun  (N.  Y.),  505.  A 
parol  agreement  to  accept  a  con- 
veyance In  trust,  and  to  reconvey 
to  the  cestui,  is  within  the  statute, 
and  cannot  be  shown  by  parol.  Mc- 
Ciain  V.  McClain,  57  Iowa,  167. 
So  also  of  an  oral  contract  under 
which  one  is  to  buy  land  at  a 
public  auction  on  joint  account  of 
himself  and  others.  Parsons  v. 
Phelan,  134  Mass.  109.  So  of  an 
agreement  to  procure  a  relinquish- 
ment of  a  wife's  dower.  Martin 
y.  Wharton,  38  Ala.  637. 

16  Benjamin  v.  Zell,  100  Pa.  St. 
33;  Babcock  v.  Reed,  50  N.  Y.  Sup. 
Ct.  126. 


17  As  where  A.  promised  to  pay 

B.  $100  if  the  latter  would  buy 
C.'s  land,  which  B.  thereupon 
bought,  it  was  held,  in  a  suit  to  re 
cover  the  $100,  that  the  contract 
was  not  within  the  statute  of 
frauds,  either  as  relating  to  land 
or  as  a  promise  to  pay  the  debt  of 
another.    Little  v.  McCarter,  89  N. 

C.  233.  A  parol  agreement  to  buy 
a  mortgage  on  A.'s  land,  sell  the 
premises  for  his  benefit  and  ac- 
count for  the  balance  over  dis- 
bursements is  not  within  the  stat- 
ute. McGinnis  v.  Cook,  57  Vt.  36. 
And  see  Mahagan  v.  Mead,  63  N.  H. 
130. 

i«  Thus,  a  promise  to  pay  a  sum 
of  money  as  a  compensation  to  the 
plaintiff  for  the  injury  done  him 
by  the  misconduct  of  the  defendant 
in  obtaining  a  patent  in  his  own 
name  for  land  which  he  ought  to 
have  patented  in  the  name  of  the 
plaintiff,  and  in  preventing  the 
plaintiff  from  obtaining  a  patent 
in  his  own  name,  and  in  consider- 
ation of  the  defendant's  having 
procured  the  patent  to  be  issued 
to  himself,   is  a  contract  for  the 


204  VALIDITY  OF  LAND  CONTRACTS. 

evidenced  by  u  writing  in  conformity  to  tlie  statute,  it  will  be 
unavailing  to  establish  any  legal  right  in  the  licensee.  It  is 
true  that  a  license,  in  the  usual  and  ordinary  acceptation  of 
the  tenn,  is  simply  an  authority  given  to  do  some  one  act  or 
series  of  acts  on  the  land  of  another  without  passing  any  estate 
in  such  land;  but  licenses  may  sometimes  practically  amount 
to  the  granting  of  an  estate,  and  when  such  is  the  case  they  are 
regarded  in  the  light  of  leases,  which,  to  be  effectual,  must  be 
by  deed.i'-^  The  distinction  will  readily  be  seen.  Licenses  to 
do  a  particular  act  do  not  in  any  degree  trench  upon  the  policy 
of  the  law,  which  requires  that  bargains  respecting  the  title  of 
or  interest  in  real  estate  shall  be  by  deed  or  in  writing.  They 
amount  to  nothing  more  than  an  excuse  for  the  act,  which 
would  otherwise  be  a  trespass;  but  a  permanent  right  to  hold 
another's  land  for  a  particular  purpose,  with  a  right  to  enter 
upon  it  at  all  times,  or  where  any  interest  greater  than  a  mere 
temporary  occupation  is  created,  while  it  does  not  extend  to 
the  land  itself,  it  is  nevertheless  a  right  annexed  to  such  land, 
which  can  only  pass  by  grant.  No  such  interest  can  be 
assigned  or  granted  without  writing,  according  to  the  express 
provisions  of  the  statute  of  frauds,^^  and  contracts  for  the  sale 
or  future  creation  of  such  rights  are  subject  to  the  same  con- 
dition. 

§  159.  License  to  flood  lands.  The  right  to  flood  the  land 
of  another,  whether  from  the  dripping  from  the  roof  of  a 
building,  the  diversion  of  a  water-course,  or  otherwise,  is  an 
interest  in  land;  and  a  parol  license  or  agreement  giving  such 
riffht  is  within  the  statute  of  frauds  and  void.    Such  a  license 


sale  of  land  within  the  statute  of  (N.  Y.)  380.    Thus,  the  conferring 

frauds,    and    must   be    in    writing,  of  a  right  to  enter  upon  lands  and 

Hughes  V.  Moore,  7  Cranch  (U.  S.),  to  ere(!t  and   maintain   a   dam   as 

176.      In    this    case    the    learned  long  as  there  shall  be  employment 

judges   construed   the   contract   to  for  the  water-power  thus   created 

import  a  sale  of  land  by  the  plain-  is  more  than  a  simple  license.     It 

tiff,   and  that  the   sum   of  money  is  the  transfer  of  an  interest  in 

stipulated  to  be  paid  was,  in  con-  lands,  and  to  be  valid  must  be  in 

templation    of   the   parties,    to   ex-  writing.    Id. 

tinguish  the  title  of  the  said  plain-  .    20  Thompson  v.  Gregory,  4  Johns, 

tiff.  (N.  Y.)   81;    Mumford  v.  Whitney, 

10  Cook  V.  Stearns,  11  Mass.  536;  15  Wend.  (N.  Y.)  380. 
Mumford    v.    Whitney,    15    Wend. 


AS   AFFECTED   BY    STATUTE   OF  FRAUDS.  205 

is  revocable  at  any  time.^i  Tlie  interest  created  by  sucli  a 
license  is  a  freehold  interest  by  way  of  easement  in  the  laud 
flowed,  whitli  can  i)ass  only  by  deed.-^ 

§  160.  License  for  right  of  way.  A  verbal  license  for  a  riglu 
of  way  over  lands  is  obnoxious  to  the  statute  and  revocable  at 
any  time.-^ 

§  161.  The  produce  of  land.  Owinp:  to  the  conflict  in  the 
adjudj'ed  cases  in  regard  to  the  interpretation  of  contracts  for 
the  sale  of  crops  and  the  natural  produce  growing  upon  land, 
it  is  difTicult  to  deduce  therefrom  any  clearly-defined  rule  upon 
the  subject.  A  marked  distinction  has  always  been  made 
between  contracts  for  the  natural  product  of  land,  technically 
tenned  prima  vestum,  as  trees,  grass  or  other  spontaneous 
growth,  and  such  as  relate  only  to  crops  raised  by  the  industry 
of  man  by  planting  and  cultivation,  called  fructus  industriales. 
A  further  distinction  is  also  made  between  the  natural  product 
when  severed  by  the  vendor  or  purchaser.  As  a  genenil  prop- 
osition, all  of  the  produce  of  the  earth,  whether  of  spontaneous 
growth,  as  trees,  grass,  etc.,  or  crops  raised  periodically  and 
by  cultivation,  as  grain,  vegetables,  etc.,  are  part  of  the  soil 
before  severance;  and  for  this  reason  it  has  been  held  that 
agreements  vesting  an  interest  in  them  in  the  purchaser  before 
severance  must,  to  be  effective,  be  expressed  in  writing.^*  But 
in  this  respect  the  authorities  are  not  harmonious.  It  has  been 
contended,  and  with  mucli  ai)i)arent  reason,  that  there  is  noth- 
ing in  the  products  of  the  earth  wliich  is  an  interest  in  or  con- 
cerning land  when  severed  from  the  soil.  If,  therefore,  such 
products  are  sold  sjx'cifically,  and  by  tlie  tenns  of  the  contract 
are  to  be  separately  delivered  as  chattels,  such  sale  cannot  be 
held  to  be  an  interest  in  land,  and  would  not  be  affected  by  the 
terms  of  the  statute.-^  The  circumstance  that  the  ])roduce 
may  or  probably'  or  certainly  will  derive  nourislunent  from 
the  soil  between  the  time  of  the  contract  and  the  time  of 
delivery  is  not  conclusive  as  to  the  operation  of  the  statute; 
and  the  test  seems  to  be  that  if  the  contract,  when  executed, 

21  Tanner  v.  Valentine,  75  111.624.  24  Kerr  v.  Hill,  27  W.  Va.  576. 

22  Miimford  V.  Whitney,  15  Wend.  2r.  gee  Purner  v.  Piercy,  40  Md. 
(N.  Y.)   380.  212;    Graff   v.    Fitch,    58    111.    377; 

23  Forbes  v.  Balenseifer,   74   111.  Marshall  v.  Ferguson,  23  Cal.  69. 
183. 


20G  VALIDITY  OF  LAND  CONTRACTS. 

is  to  convey  to  the  purchaser  a  mere  chattel,  though  it  may 
be  in  the  interim  a  part  of  the  realty,  it  is  not  affected  by  the 
statute;  but,  if  the  contract  is,  in  the  interim,  to  confer  upon 
the  purchaser  an  exclusive  right  to  the  land  for  a  time,  for  the 
purpose  of  making  a  profit  of  the  growing  surface,  it  is  affected 
by  the  statute  and  must  be  in  writing,  although  the  purchaser 
is  at  last  to  take  from  the  land  only  a  chattel. 

§  162.  Standing  trees.  Upon  this  subject  there  is  a  very 
decided  conllict  of  authority.  A  large  number  of  apparently 
well-considered  decisions  hold  that  a  contract  for  the  sale  of 
trees  growing  upon  land  is  within  the  statute  of  frauds,  as 
comprehending  a  sale  of  land,  "or  some  interest  therein  ;"26 
and  hence,  to  be  operative  or  enforceable,  must  be  in  writing.^^ 
Under  these  decisions  standing  trees  are  regarded  as  a  part 
of  the  land  in  which  they  are  rooted,  and  from  which  they 
draw  their  support,  and  that  being  thus  impressed  with  the 
character  of  real  property  they  fall  strictly  within  the  letter 
as  well  as  the  spirit  of  the  statute.^s  On  the  other  hand,  there 
are  not  wanting  authorities  which  sustain  the  doctrine  that 
where  timber  or  produce  of  land,  or  other  thing  annexed  to 
the  freehold,  is  sold  specifically,  whether  it  is  to  be  taken  by 
the  vendee  under  a  special  license  to  enter  for  that  purpose,  or 
whether  it  is  to  be  severed  from  the  soil  by  the  vendor,  in  the 
contemplation  of  the  parties  it  is  still  substantially  a  sale  of 
chattels  only.^s  It  cannot  be  doubted  that,  in  every  sale  of 
this  description,  such  is  the  intention  of  the  parties;  and  the 

26  The  term  "land"  embraces  not  232;  Westbrook  v.  Eager,  16  N.  J. 
only  the  soil  but  its  natural  prod-  L.  81;  Cool  v.  Lumber  Co.  87  Ind. 
uce  growing  upon  it  and  affixed  531;  Daniels  v.  Bailey,  43  Wis. 
to  it,  all  of  which  pass  by  a  grant  566;  Williams  v.  Flood,  63  Mich, 
of  it.     Harrell  v.  Miller,  35  Miss.  487. 

700;  Kingsley  v.  Holbrook,  45  N.  H.  28  Kingsley  v.  Holbrook,  45  N.  H. 

313.  313;  Buck  v.  Pickwell,  27  Vt.  157; 

27  Owens  V.  Lewis,  46  Ind.  488;  Yeakle  v.  Jacob,  33  Pa.  St.  376; 
Russell  V.  Meyers,  32  Mich.  522;  Hirth  v.  Graham,  50  Ohio  St.  57; 
Kingsley    v.    Holbrook,    45    N.    H.  Lillie  v.  Dunbar,  62  Wis.  198. 

313;  Buck  V.  Pickwell,  27  Vt.  164;  29  Smith    v.    Bryan,    5   Md.    141; 

Harrell    v.    Miller,    35    Miss.    700;  Cain  v.  McGuire,  13  B.  Mon.  (Ky.) 

Jenkins  v.  Lykes,  19  Fla.  148;  Slo-  340;    Cutter  v.  Pope,  13  Me.   377; 

cum  V.  Seymour,  36  N.  J.  L.  139;  Killmore  v.  Hewlett,  48  N.  H.  569; 

Killmore  v.  Howlett,  48  N.  Y.  569;  Carpenter  v.  Medford,  99  N.  C.  495; 

Yeakle  v.   Jacob,   33   Pa.   St.   376;  Fish  v.  Capwell,  18  R.  I.  667;  Green 

Knox    V.    Haralson,    2    Tenn.    Ch.  v.  R.  R.  Co.  73  N.  C.  524.     In  this 


AS   AFFECTED   BY    STATUTE   OF  FRAUDS.  207 

onlv  (jiicslidii  tiiat  arises  is,  wlicllicr  hy  the  principles  of  law 
sucli  inti'iilion  can  be  efrectuatcd. 

Tlic  (incstidu  has  assuiiu'd  iiiaiiy  phases  and  has  received 
nianv  dill'ei-eiit  interpretations.  Thus,  it  has  been  held  that  a 
sale  of  slandiii;,'  limber,  in  writing,  by  the  owner  of  the  fee  in 
the  land,  has  the  ellect  in  law  to  sever  the  trees  from  the  land, 
and  that  they  then  become  i>ersonal  chattels  without  any 
actual  severance;  that,  after  such  constructive  or  lej^al  sever- 
ance by  the  orij^inal  sale,  they  may  be  conveyed  like  any  other 
personal  i)roperty  by  parol;'**'  and  that,  when  such  conveyance 
by  the  owner  of  the  fee  does  not  limit  the  time  for  the  entry  of 
the  grantee  upon  the  land  to  cut  and  remove  the  trees,  a  rij^ht 
of  entry  i)asses  for  an  indetinite  but  reasonable  time.  Here, 
therefore,  there  would  seem  to  be  a  recognition  of  the  princij)le 
that  growing  trees  may  be  the  subject  of  an  ownership  distinct 
from  the  ownership  of  the  soil,  and  that,  under  the  circum- 
stances stated,  the}^  are  no  longer  deemed  as  annexed  to  the 
realty,  but  as  entirely  abstracted  or  divided  therefrom,  and, 
hence,  may  be  treated  the  same  as  other  personal  chattels 
which  are  the  annual  produce  of  labor  and  of  the  cultivation  of 
the  earth.^i  While  the  timber  remains  standing  it  is  certainly 
an  integral  part  of  the  realty,  and  until  severed,  either  actually 
or  constructively,  remains  the  jjroperty  of  the  owner  of  the 
soil;  but,  it  is  contended,  it  is  doing  no  violence  to  establisht^l 
legal  i)rinciples  to  construe  such  contracts  as  passing  an  inter- 
est in  the  trees  when  severed  from  the  freehold  ;^2  while  it  is 
well  settled  that  a  license  to  enter  on  the  land  of  another  and 
do  a  ])articular  act  or  series  of  acts  may  be  valid,  although  not 
granted  by  deed  or  in  writing.^^  If  such  a  license  be  not 
revoked  before  the  trees  are  severed  the  title  in  the  property 
will  become  absolute  in  the  vendee,  and  the  license,  being 


case  the  wood  had  been  cut  and  as  executory  contracts  for  the  sale 
carried  away,  and  the  action  was  of  chattels  as  they  shall  be  there- 
brought  for  the  price.  after  severed  from  the  real  estate, 

3"  See  Carpenter  v.  Medford,  99  with  a  license  to  enter  on  the  land 

N.  C.  495.  for  the  purpose  of  removal.     Poor 

■ii  See  Warren  v.  Leland,  2  Barb.  v.  Oakman,  104  Mass.  316;  Jenkins 

(N.  Y.)  613;  Cudworth  v.  Scott,  41  v.  Sykes,  19  Fla.  148;  Yale  v.  See- 

N.  H.  456.  ley.  15  Vt.  221. 

32  White  V.  Foster,  102  Mass.  378.        ^^  Hill  v.  Cutting,  107  Mass.  597; 

Such  agreements  may  be  regarded  Sterling  v.  Baldwin,  42  Vt  306. 


208  VALIDITY  OF  LAND  CONTRACTS. 

coupled  with  an  interest,  will  then  be  irrevocable,  giving  to 
the  vendee  a  jierfect  right  to  enter  and  remove  the  trees  thus 
severed;  but  if,  before  the  trees  are  severed,  the  vendor  should 
revoke  such  license,  no  title  under  this  line  of  decisions  would 
pass  to  the  vendee  and  no  rights  would  vest  by  virtue  of  such 
contract.-^^  It  will  be  seen,  therefore,  in  this  view  of  the  case, 
that,  notwithstanding  a  parol  sale  of  timber  may  be  void  as  a 
sale  of  an  interest  in  land,  it  may  nevertheless  still  be  permit- 
ted to  operate  as  a  license  to  enter,  cut  and  carry  away  the 
trees;  and,  if  executed  by  cutting,  the  timber  will  be  converted 
into  personalty  and  the  title  thereto  will  vest  in  the  person 
acting  under  the  license,  he  having  complied  with  all  the  con- 
ditions under  which  the  same  was  granted.^^ 

The  cases  w^hich  unqualifiedly  hold  that  a  sale  of  growing 
trees  is  a  sale  of  chattels  only  are  very  few,^^  and  are  mainly 
based  upon  the  fact  that  such  sales  were  made  in  prospect  of 
immediate  separation  from  the  land — the  idea  being  that  the 
trees  sold  would,  on  account  of  their  immediate  removal, 
derive  no  benefit  from  the  soil. 

The  general  rule,  however,  and  the  one  which  seems  to  be 
sustained  by  the  volume  of  authority,  is  as  first  stated;  that 
is,  that  a  sale  of  growing  or  standing  timber  is  a  contract  con- 
cerning an  interest  in  land,  and,  hence,  within  the  inhibition  of 
the  statute,  and  it  may  be  said  further,  that  this  rule  is  sus- 
tained by  all  the  analogies  of  law.  As  between  debtor  and 
creditor  the  rule  is  well  established  that  trees  are  a  part  of 
the  realty,  and  may  not  be  reached  by  execution  against  chat- 
tels; so  in  the  case  of  an  heir,  they  descend  with  the  land; 
so  as  to  a  vendee,  they  pass  with  a  sale  of  the  land  without 
special  mention.  And  it  may  further  be  said,  that,  in  a  mat- 
ter of  this  kind,  a  sale  does  not  depend  upon  the  intention  of 
the  parties,  but  upon  the  legal  character  of  the  subject  of  the 
contract.  It  is  also  well  settled  that  standing  timber  is  an 
interest  in  lands  that  may  be  acquired  by  deed,  and  the  fact 

34  Owens  V.  Lewis,  46  Ind.  488;  v.  McCauley,  53  Pa.  St.  210;  Howe 
Poor  V.  Oakman,   104   Mass.    316;  v.  Batchelder,  49  N.  H.  204. 
Delaney  v.  Root,  99  Mass.  546.  se  See   Byasse   v.   Reese,    4   Met. 

35  Jenkins  v.  Lykes,  19  Fla.  148;  (Ky.)  372;  Erskine  v.  Plummer,  7 
Pratt  V.  Ogden,  34  N.  Y.  23;  Yale  Me.  447;  Purner  v.  Piercy,  40  Md. 
V.  Seeley,  15  Vt.  221;  Poor  v.  Oak-  212. 

man,  104  Mass.  316.    And  see  HufC 


AS   AFFECTED   BY    STATUTE   OF   FRAUDS.  209 

that  siiiiic  iiiusl  hv  removed  within  a  definite  i>eriod  does  not 
prevent  the  vesting  of  title.^'^ 

i5 163.  Growing  crops.  That  j^rowinj!^  ero])H  are  a  part  of 
the  freehokl  and  pass  witli  the  laud  ujjon  whicli  they  stand  is  a 
proposition  settled  bevond  dispute;-***  and  the  rule  as  stated  b\' 
the  earlier  writers  is  that  in  contracts  for  the  sale  of  thinj^s 
annexed  to  and  ^rowinj;  upon  the  freehold,  if  the  vendee  is  to 
have  the  right  to  the  soil  for  a  time  for  the  puii)oses  of  further 
growth  and  profit  of  that  which  is  the  subject  of  siile,  it  is  an 
interest  in  land  within  the  meaning  of  the  statute  of  fi-auds, 
and  must  be  proved  by  writing;  but  when  the  thing  is  sold  in 
prospect  of  separation  from  the  soil,  immediatel}'  or  within  a 
convenient  and  reasonable  time,  without  any  stipulation  for 
the  beneficial  use  of  the  soil,  and  with  but  a  mere  license  to 
enter  and  take  away,  it  is  to  be  regarded  substantially  as  a 
sale  of  goods,  and  so  not  within  the  statute;  although  an  inci- 
dental benefit  may  be  derived  to  the  vendee  from  the  circum- 
stance that  the  thing  may  remain  for  a  time  upon  the  land.3'-> 
Later  decisions  have  not  been  in  strict  accord  with  this  old 
rule;  and  while  in  some  states  it  is  substantially  recognized 
and  adopted,  in  others  it  has  been  expressly  denied.  In  view 
of  the  American  authorities  on  this  subject  no  Siitisfactory 
rule  can  be  framed  that  shall  have  a  general  application;  but 
the  test,  in  most  cases,  will  depend  upon  the  terms  of  sale 
with  reference  to  the  right  of  the  purchaser  to  use  the  land, 
either  for  the  purpose  of  further  cultivation  or  possible'  for 
the  harvesting  of  the  crop.^^  The  tendency  of  the  authorities, 
however,  is  to  regard  all  contracts  for  the  sale  of  natural  pro- 
duce, in  place,  as  a  sale  of  an  interest  in  land;^^  while  culti- 
vated crops,  or  such  as  come  within  the  meaning  of  the  term 


37  Johnson  V.  Moore,  28  Mich.  3 ;  Met.  (Mass.)  313;  Giles  v.  Sim- 
Mae  V.  Benedict,  98  Mich.  260;  monds,  15  Gray  (Mass.),  441;  Poor 
Magnetic  Ore  Co.  v.  Lumber  Co.,  v.  Oakman,  104  Mass.  309. 

104  Ala.   465.  4i  Thus,  wild  grass  growing  on 

38  Kerr  v.  Hill,  27  W.  Va.  576.  unoccupied,    uncultivated,   land    is 
30  Burner  v.  Piercy,  40  Md.  212;  part  of  the  realty,  and  an  attempt 

Graff  V.   Fitch,   58   111.   377.  to  transfer  it  by  a  parol  grant  is 

■•0  Consult  Sterling  v.  Baldwin,  42  void.    Powers  v.  Clarkson,  17  Kan. 

Vt.   306;    Whitmarsh  v.  Walker,  1  218. 

14 


210  VALIDITY  OF  LAND  CONTRACTS. 

fnictus  industriales,  as  sales  of  goods  only — the  former  to  be 
evidenced  by  a  writint::,  wliilo  the  latter  may  rest  in  parol.^^ 

§  164.  Ruined  walls  and  buildings.  Complete  or  unfinished 
structures  of  any  kind,  where  llu'  annexation  is  of  a  perma- 
nent character,  are  properly  considered  as  forming  part  of  the 
realty  so  long  as  the  materials  of'%vhich  they  are  composed 
remain  in  place.  That  the  original  building  has  been 
destroyed  by  fire  or  other  casualty  does  not  alter  the  rule  or 
afford  room  for  a  different  construction.  The  materials  of 
which  a  building  is  composed  will,  so  far  as  they  may  become 
severed  by  fire,  become  personalty,  and  may  properly  be  the 
subject  of  a  valid  contract  by  parol;  yet  where  walls  remain 
standing,  even  though  dilapidated  and  in  ruins,  they  do  not 
lose  their  essential  character  as  realty,  and  contracts  relating 
to  them  are  for  interests  in  land,  which,  under  the  statute, 
must  be  in  writing.  Hence,  a  contract  for  the  sale  of  the 
debris  and  refuse  left  by  a  fire,  while  valid  if  relating  only  to 
the  fallen  and  detached  portions,  would  be  incapable  of 
enforcement  as  to  the  standing  walls  unless  in  writing;  and 
although  part  of  the  subject-matter  might  have  been  person- 
alty, yet,  if  the  contract  embraced  realty  as  well,  it  must  be 
regarded  as  entire  and  governed  by  the  statute  of  frauds.*^ 

§  165.  Buildings  to  be  removed.  The  sale  of  a  building 
with  the  right  of  removal  is  not  necessarily  a  sale  of  an  inter- 
est in  lands  within  the  meaning  of  the  statute  of  frauds;  and 
if  the  effect  of  the  contract  of  the  parties  is  to  impress  upon 
the  structure  the  character  of  personalty,  it  will  ordinarily 


42  Sterling    v.    Baldwin,    42    Vt.  ute     of     frauds.       Whitmarsh     v. 

306;  Howe  v.  Batchelder,  49  N.  H.  Walker,  1  Met.  (Mass.)  313. 

204;    Slocum  v.  Seymour,  36  N.  J.  ^^  Thayer  v.  Rock,  13  Wend.  (N. 

L.   138;    Owens   v.  Lewis,   46   Ind.  Y.)    53.      Where    a    building    was 

488.     An   oral   agreement  for  the  burned,  and  the  owner  afterwards 

sale  of  mulberry  trees  growing  in  verbally  sold  the  bricks,  some  of 

a  nursery,  and   raised  to  be  sold  which  had  been  severed  by  the  fire, 

and  transplanted,  to  be  delivered  but  the  greater  part  remaining  in 

on    the    ground    where    they    are  the    walls,    it   was    held    that   the 

growing,    upon    payment   therefor  brick  in  the  walls  was  realty,  and 

being  made,  is  not  a  contract  for  the    sale    being    an    entirety    was 

the  sale  of  an  interest  in  or  con-  within  the  statute  of  frauds.    Mey- 

cerning  lands,  etc.,  within  the  stat-  ers  v.  Schemp,  67  III.  469. 


AS   AFFECTED   BY   STATUTE   OF  FRAUDS.  211 

be  permitted  to  take  that  character.''*  If  the  structure  is  sold 
to  remain  on  the  land,  unless  of  a  very  sli<j;ht  and  unsubstan- 
tial character,  this  would  without  doubt  be  a  sale  of  an  inter- 
est in  laud  within  the  statute.  Certainly  such  would  be  the 
case  if  the  sale  is  made  by  the  owner,  althoujjh  it  mif^ht  be 
otherwise  if  made  by  a  tenant  or  licensee.  P.ut  where  the 
owner  sells  a  buildin;^,-  wilh  the  rijj^ht  of  iciuoval,  he  severs  it 
from  the  land  and  ^ives  it  the  character  of  personalty;  and 
in  impressing  this  character  upon  it,  he  takes  it  without  the 
statute  as  effectually  as  if  he  had  torn  it  down  and  sold  the 
materials  of  which  it  was  composed.-*^'  In  view,  however,  of 
the  subject  discussed  in  the  last  i)ara^M'aph  the  question  is  one 
of  doubt,  particularly  when  the  building  is  erected  on  founda- 
tions which  penetrate  the  soil  and  virtually  form  a  part  of  the 
land.**"' 

§  166.  Partition  fence.  The  general  rules  which  reguiate 
the  holding  and  transmission  of  land  apply  with  the  same  force 
and  effect  to  any  and  all  interests  therein,  however  small  and 
insignificant  they  may  appear.  For  this  reason  it  would  seem 
that  even  a  contract  for  the  conveyance  of  an  undivided  inter- 
est in  a  partition  fence  between  lands  of  adjoining  owners, 
must,  to  satisfy  the  statute  of  frauds,  be  in  writing.*^  Such 
an  agreement  is  to  be  regarded  as  a  contract  for  the  release  of 
an  interest  in  realty,  and  although  but  an  inconsequential 
easement  is  involved,  it  nevertheless  cannot  be  reserved  by 
parol. 

§  167.  Parol  reservations.  In  sales  of  improved  property 
it  is  no  uncommon  thing  to  make  a  verbal  arrangement  con- 

44  Rogers   V.   Cox,    96    Ind.   157;  see  Long  v.  White,  42  Ohio  St.  59, 

Keyser  v.  School  District,  35  N.  H.  where   a   verbal   contract    for   the 

477;    Ham   v.   Kandall,    111   Mass.  sale  and  delivery  of  a  house  then 

297;    PuUen  v.   Bell,   40   Me.   314;  affixed  to  the  realty,  but  afterward 

Coleman  v.  Lewis,  27  Pa.  St.  291.  severed   and   delivered   on   rollers, 

*••  Rogers  v.  Cox,  96  Ind.  157.   In  was  held  not  within  the  statute  of 

this  case  it  did  not  appear  that  the  frauds. 

building  was  permanently  annexed  4«  See  also  the  cases  sustaining 

to  the  land,  and  the  court  refused  the  doctrine  of  the  succeeding  para- 

to  decide  what  would  be  the  rule  graph. 

in   case   it   had   been,   but   at   the  ■<"  Rudisill  v.  Cross.  54  Ark.  519; 

same  time  strongly  intimating  that  Knox  v.  Tucker,  48  Me.  373;   and 

it  might  still  be  the  subject  of  a  see  Kellogg  v.  Robinson,  6  Vt.  276. 
valid  verbal  contract  of  sale.    And 


212  VALIDITY  OF  LAND  CONTRACTS. 

teniporaneous  with  the  written  contract,  whereby  a  reserva- 
tion is  made,  or  attempted  to  be  made,  of  trees,  shrubbery, 
buildings  and  other  artificial  objects  upon  the  property.  It 
seems  almost  unnecessary  to  repeat  here  what  has  been  fully 
discussed  in  this  and  other  chapters  of  the  work  relative  to 
the  character  of  annexations  and  accretions  to  land,  as  well  as 
the  utter  inadmissibility  of  contemporaneous  verbal  agree- 
ments to  impair  the  effect  of  a  written  contract,  which  the 
parties  in  executing  are  deemed  to  have  deliberately  made  the 
exclusive  evidence  of  the  terms  of  their  agreement.  The  posi- 
tive rules  of  law  forbid  any  such  showing;  and  where  the  con- 
tract is  efficient  to  pass  the  land,  trees,  shrubs,  buildings,  etc., 
are  considered  as  annexed  to  it  and  pass  by  a  sale  of  the  soil.*^ 

§  168.  Agreements  for  exchange.  A  contract  for  the  ex- 
change of  lands  is  as  much  within  the  statute  of  frauds  as  a 
contract  for  their  sale,^^  The  statute  which  requires  such  con- 
tract to  be  in  writing  is  equally  binding  on  courts  of  equity  as 
courts  of  law;  and  while  courts  of  equity  have,  in  many 
instances,  relaxed  the  rigid  requirements  of  the  statute  for  the 
purpose  of  hindering  the  statute  made  to  prevent  frauds  from 
becoming  the  instrument  of  fraud,  it  will  never  do  so  in  the 
case  of  an  agreement  for  exchange,  unless  there  has  been  a 
part  performance  or  delivery  of  possession  made  in  pursuance 
of  a  prior  contract  conclusively  proved.^^  Where  there  has 
been  no  part  execution  on  either  side,  nor  anything  but  a 
breach  of  promise,  relief  will  not  be  granted. 

§  169.  Collateral  agreements.  While  the  tendency  of  courts 
is  to  increase  rather  than  relax  the  stringency  of  the  statute 
in  its  practical  application,  and  to  insist  upon  the  rule  which 
forbids  the  introduction  of  jjarol  testimony  to  limit,  impair  or 
otherwise  affect  the  operation  of  written  contracts,  yet  in  the 
matter  of  contemporaneous  or  subsequent  agreements  collat- 
eral to  and  growing  out  of  the  principal  contract,  when  they  do 
not  tend  to  contradict  or  impeach  such  contract,  a  marked 

48  A  parol   reservation   of   orna-  and  see  Rudisill  v.  Cross,  54  Ark. 

mental     shrubbery     held    invalid,  519. 

Smith  V.  Price,  39  111.  28.    A  parol  49  Purcell    v.    Coleman,    4    Wall, 

reservation   of   a  barn  and   sheds  (U.  S.)  513. 

from   the   operation   of   a  deed   is  so  Purcell    v.    Coleman,    4    Wall, 

void  under  the  statute  of  frauds.  (U.  S.)  513. 
R.  R.  Co.  V.  Forbes,  30  Mich.  165; 


AS   AFFECTED   BY    STATUTE  OP  FRAUDS.  213 

liberality  is  noticeable.  Where  siicli  collatcriil  a^n-ccniciits  do 
not  ])rof('ss  to  be  for  the  conveyance  of  any  interest  in  the  land, 
notwith.standing  they  may  be  directly  referable  to  it,  they  are 
permitted  to  rest  in  parol,  and  oral  testimony  will  be  received 
to  establish  them.  Thns,  an  a<;reenient  between  the  ])arties 
to  a  previously-made  contract  for  the  sale  of  lands,  that  if, 
upon  a  sui-vey,  the  tract  proves  larger  than  is  called  for  by  the 
contract,  the  purchaser  shall  pay  an  increased  ])rice,  need  not 
be  in  writing,  as  it  is  not  a  contract  for  the  sale  of  lands,  and 
hence  not  within  the  statute  ;^i  and  so  of  all  contracts  and 
agreements  made  with  reference  to  a  ])revious  conti-act,  but 
not  in  derogation  of  its  terms  or  calculated  to  impair  its  opera- 
tion.52 

Collateral  agreements  made  contemporaneously  with  the 
principal  agreement,  and  with  reference  thereto,  stand  on  the 
same  ground  as  subsequent  agreements  and  are  governed  by 
the  same  rules.'^^ 

§  170.  Partnership  agreements  for  dealing  in  lands.  Upon 
the  (juestion  as  to  whether  a  ])artneisliij)  for  tlie  purpose  of 
dealing  in  real  estate  can  be  proved  by  parol  there  is  consid- 
erable conflict  of  authority.  On  the  one  hand  it  is  claimed 
that  a  parol  agreement  for  such  a  partnership  would  be  within 
the  statute  of  frauds,  which  provides  that  no  estate  or  interest 
in  lands  shall  be  created,  assigned  or  declared,  unless  by  act 

51  McConnell  v.  Brayner,  63  Mo.  ligatory  though  not  in  writing. 
461;  Sherrill  v.  Hagan,  92  N.  C.  Betts  v.  Brown,  3  Mo.  App.  20;  Am- 
345.  bier  v.  Cox,  20  N.  Y.  Sup.  Ct.  295, 

52  An  agreement  between  the  53  a  grantee,  before  accepting 
grantor  of  lands  and  his  grantee  the  end  of  an  ungraded  lot  in  a 
that  the  latter,  in  consideration  of  city,  said  to  the  grantor:  "You 
the  conveyance,  shall  support  the  have  to  pay  for  the  filling  in;"  to 
former  for  life,  is  not  within  the  which  the  grantor  replied,  "All 
statute  of  frauds,  but  may  be  oral,  right,  I  will  pay  it."  In  an  action 
Harper  v.  Harper,  57  Ind.  547.  Nor  by  the  grantee  to  recover  from  the 
is  a  contract  by  a  son  with  his  grantor  the  amount  of  an  assess- 
father  that,  in  consideration  of  a  ment  subsequently  laid  for  the  fill- 
conveyance  to  him  by  the  father,  ing,  and  paid  by  the  plaintiff,  held, 
he  will  release  to  his  brothers  and  that  the  defendant  was  liable,  as 
sisters  all  claim  in  expectancy  to  on  a  valid  independent  agreement, 
the  residue  of  the  father's  estate,  to  pay  any  assessment  for  filling 
Galbraith  v.  McLain,  84  III.  379.  which  the  municipal  authorities 
Agreements  settling  doubtful  might  lay  upon  the  lot.  McCor- 
boundaries  may  be  valid  and  ob-  mick  v.  Cheevers,  124  Mass,  262. 


214  VALIDITY  OF  LAND  CONTRACTS. 

or  operation  of  law  or  by  deed  of  conveyance  in  writing.^^  On 
the  other  hand  it  is  contended  that  such  an  agreement  is  not 
affected  by  the  statute,  for  the  reason  that  the  real  estate  is 
treated  and  administered  in  equity  as  personal  property  for  all 
the  pur])oses  of  the  i)artnership.^^  It  would  seem,  however, 
that  a  distinction  should  be  made  between  agreements  by  two 
or  more  to  purchase  lands  for  their  joint  benefit  and  a  part- 
nership agreement  for  dealing  in  lands.  The  former  is  within 
the  statute,  while  the  latter  has  frequently  been  held  to  be 
unaffected  by  it.^'*'  And  while  the  subject  is  somewhat  unset- 
tled the  prevailing  opinion  would  seem  to  be  that  partnership 
agreements  do  not  come  within  the  meaning  of  the  statute, 
since  neither  conveys  or  assigns  any  land  to  the  other;  that, 
as  between  the  partnership  and  its  vendors  or  vendees,  in  the 
sale  or  purchase  of  lands,  the  statute  in  all  cases  would 
operate;  but  as  between  the  partners  themselves,  when  they 
are  neither  vendors  nor  vendees  of  one  another,  it  would  not 
affect  their  agreements.^'^ 

In  like  manner  an  oral  agreement  whereby  one  is  to  nego- 
tiate the  purchase  of  land,  and  the  other  is  to  pay  the  price 
and  take  the  title,  and,  when  the  latter  shall  sell,  the  profits  to 
be  divided  between  them,  is  not  within  the  statute  of  frauds,^^ 
as  it  does  not  contemplate  that  the  negotiator  shall  have  any 
estate  or  interest  in  the  land  or  be  interested  in  any  way  in 
the  transaction,  unless  upon  a  sale  there  should  be  a  profit, 

54  See  Smith  v.  Burnham,  3  Sum-  and  see  Personette  v.  Pryme,  34  N. 

ner    (C.  Ct.),  435.     An  agreement  J.  Eq.  26;    Everhart's  Appeal,  106 

by   parol,   under   which   one   is  to  Pa.   St.  349;    Babcock   v.  Read,  99 

buy  land  at  public  auction  on  the  N.   Y.    609;    Richards   v.    Grinnell, 

joint  account  of  himself  and  an-  63   Iowa,   44;    Gibbons  v.  Bell,   45 

other,  held  to  be  within  the  statute  Tex.  417;    Hodge  v.  Twitchell,  33 

of  frauds.     Parsons  v.  Phelan,  134  Minn.   391;    Speyer  v.   Desjardins, 

Mass.  109.     A  parol  agreement  of  144  111.  641;   Bates  v.  Babcock,  95 

partnership    for    the    purchase    of  Cal.  479. 

standing  timber,  held,  void.     Sey-        58  Snyder   v.   Wolford,   33   Minn 

mour  V.  Gushing,  100  Wis.  580.  175;   Benjamin  v.  Zell,  100  Pa.  St 

5-' Bunnell    v.    Taintor,    4    Conn.  33;    Heyn  v.   Philips,  37  Cal.  529 

568;  Richards  v.  Grinnell,  63  Iowa,  Gwaltney  v.  Wheeler,  26  Ind.  415 

44;  Patterson  v.  Wone,  10  Ala.  444.  Lesly    v.    Rasson,    39    Miss.    368 

50  See  Speyer  v.  Desjardins,  144  Bruce    v.    Hastings,    41    Vt.    380 

111.  641.  Trowbridge  v.  Wetherbee,  11  Allen 

57  Chester  V.  Dickerson,  54  N.  Y.  (Mass.),   361;    Treat  v.   Hiles,   68 

1;  Holmes  v.  McCray,  51  Ind.  358;  Wis.  344. 


AS   AFFECTED   BY    STATUTE   OF  FRAUDS.  21o 

and  llicn  only  in  the  profit.  Sncli  an  agreement  is  rather  one 
of  ciiijdovnicnt  or  aj^^cncy  than  foi*  an  interest  in  hind.  Nor 
will  any  tinst  exist  in  resjiect  to  the  profits  otlier  than  such 
as  arises  upon  the  receipt  by  one  of  money  which  he  has 
ajijreed  to  ])ay  on  sncli  receipt  to  another.^'-'  So,  also,  a  con- 
tract by  which  parties  agree  to  accjuire  laud  togetlier,  one  fur- 
nishing the  certificate  and  the  other  the  labor  and  expense  of 
surveying  and  jtrocnriiig  a  ]»atent  for  it,  is  not  a  contract  for 
the  purchase  and  sale  of  lands  within  the  jirovisions  of  the 
statute  of  frauds.^^  An  agreement  between  two  persons,  by 
which  one  is  to  i)urchase  land  on  the  joint  account  of  both, 
and  each  party  is  to  contribute  a  moiety  of  the  purchase 
money,  and  the  title  is  to  be  made  to  both  as  tenants  in  com- 
mon, has  been  hold  not  to  be  within  the  statute  of  frauds,  and, 
hence,  valid  though  not  in  writing.''^ 

It  is  important,  however,  that  the  integrity  of  the  statute 
shall  be  preserved;  and  generally  where  by  the  terms  of  the 
agreement  a  transfer  of  land  is  contemplated,  whether  the 
title  to  the  same  shall  be  vested  in  one  of  the  parties  to  such, 
agreement  or  in  a  stranger,  it  is  a  contract  for  the  sale  of  an 
interest  in  land,  and  within  the  words  and  policy  of  the 
statute.c2 

§  171.  Memorandum  for  sale  of  partnership  lands.  The  gen- 
eral features  of  the  partnersliij)  relation,  so  far  as  it  pertains 
to  lands  owned  by  the  firm,  has  already  been  discussed,^'^  but 
the  subject  requires  a  still  further  mention  in  this  connection. 
The  statute  requires  that  the  memorandum  of  sale  shall  be 
signed  by  the  party  to  be  charged  and  it  is  fundamental  that 
where  a  contract  is  not  so  signed  it  is  incapable  of  legal 
enforcement.  To  this  rule  equity  has  permitted  some  modi- 
fication when  the  contract  relates  to  lands  owned  by  a  firm. 
The  general  rule  would  seem  to  be,  that,  in  consonance  with. 

50  Snyder  v.  Wolford,  33   Minn,  need  not  be  in  writing.    Murley  v. 

175.  Ennis,  2  Col.  300. 

tio  Gibbons  v.  Bell,  45  Tex.  417.  oi  Levy  v.  Brush,  8  Abb.  Pr.  (N. 

An  agreement  between  two  or  more  Y.)  418. 

persons   to  explore  the  public  do-  «-'  Rawdon    v.    Dodge,    40    Mich, 

main  and  discover  and  locate  lodes  697,  and  see  Levy  v.  Brush,  45  N. 

for  the  joint  benefit  of  all  is  not  Y.  589;    Purcell  v.   Miner,  4  Wall, 

within  the  statute  of   frauds  and  (U.  S.)  513. 

03  See  §  58  ante. 


216  VALIDITY  OF  LAND  CONTRACTS. 

the  partnership  principle  of  mutual  agency,  each  partner  pos- 
sesses full  authority  to  contract  for  the  sale  or  other  disposi- 
tion of  the  entire  property  of  the  firm,  notwithstanding  that 
the  legal  title  is  vested  in  all  the  partners.  The  rule  acquires 
additional  force  where  the  partnership  business  consists  only 
in  dealing  in  real  property,  and  the  doctrine  has  frequentl}' 
been  announced  that  in  such  event  a  cofitract  for  a  sale  of  the 
partnershii)  lands,  signed  by  one  member  of  the  fimi  only,  does 
not  contravene  the  terms  of  the  statute  and  may  be  specifically 
enforced  against  all  of  the  partners.^^ 

§  172.  Ante-nuptial  agreements.  By  the  fourth  section  of 
the  English  statute  of  frauds,  which  has  been  re-enacted  in 
some  of  the  states,  no  action  can  be  bi*ought  to  charge  any 
person  upon  any  agreement  made  upon  consideration  of  mar- 
riage, unless  the  same  shall  be  in  writing  and  signed  by  the 
person  to  be  charged.  Ante-nuptial  agreements  come  within 
the  provisions  of  this  section.  It  has  been  held  that  a  verbal 
ante-nuptial  agreement  might,  under  special  circumstances, 
be  enforced  in  equity  to  prevent  the  perpetration  of  a  fraud; 
as,  when  the  wife  has  by  some  artifice  or  trick  prevented  the 
contract  from  being  reduced  to  writing,  and  has  received  a 
substantial  benefit  from  it,  so  that  it  would  operate  as  a  fraud 
upon  the  husband.  In  such  case  there  would  appear  to  be  no 
doubt  of  the  power  of  a  court  of  equity  to  afford  the  proper 
relief,  notwithstanding  the  statute,  on  the  general  principle 
that  the  statute  is  never  to  be  so  expounded  as  to  make  it  a 
mere  instrument  in  consummating  a  fraud  upon  the  party 
against  whom  it  is  invoked.^^ 

As  a  general  rule,  however,  a  mere  verbal  agreement  made 
before  marriage,  whereby  the  intended  wife  releases  and 
renounces  all  interest  in  the  proposed  husband's  estate,  is 
obnoxious  to  the  statute  of  frauds;  nor  will  the  signing  of  an 
ante-nuptial  agreement  in  form,  after  marriage,  although  pur- 
porting to  have  been  executed  before  that  event,  have  the 
effect  to  take  a  verbal  agreement  of  the  same  effect,  made 
before  marriage,  out  of  the  statute.     The  execution  of  such 

61  Rovelsky    v.    Brown,    92    Ala.  es  McAnnulty  v.  McAnnulty,  120 

522;  Thompson  v.  Bowman,  6  Wall.  111.  26;  Jenkins  v.  Eldridge,  3  Story 

(U.  S.)  316;  Chester  v.  Dickerson,  (C.  Ct),  181. 
54  N.  Y.  1. 


AS   AFFECTED   BY    STATUTE   OF   FRAUDS.  217 

agreemeut  can  be  rc';:;ar(l(d  no  f  mi  her  tliaii  as  a  iiicfe  acknowl- 
edgment in  writing  of  the  terms  of  the  previous  verbal  agree- 
ment, which  fails  to  meet  the  requirements  of  the  statute/'" 

§  173.  The  description.  It  is  unnecessary  to  make  more 
than  jiassing  allusion  to  the  iirinciples  governing  the  descrip- 
tion of  the  lands  which  form  the  subject-matter  of  a  contract, 
as  the  essentials  of  same  have  already  been  (piite  fiilly  dis- 
cussed. It  may  be  said,  however,  that  jiarol  evidence  is  inad- 
missible to  supply  a  material  omission  in  the  writing  of  any 
reference  to  the  particular  property,  yet  a  defect  may  fre- 
(piently  be  aided  by  evidence  showing  the  situation  of  the 
parties  and  the  surrounding  circumstances,  and  the  identity 
of  the  particular  property  intended  to  be  conveyed  be  thereby 
ascertained.^*^  Thus,  when  the  writing  fails  to  si>ecifically 
locate  the  lands,  but  refers  to  them  in  general  terms,  as  where 
the  agreement  is  for  the  sale  of  a  house  in  which  the  vendor 
resides,  parol  evidence  may  be  given  to  locate  such  house. 
Therefore,  where  upon  a  view  of  the  writings  it  ajipears  that 
both  parties  referred  to  the  same  property,  it  would  seem  the 
requirement  of  the  statute  is  fulfilled,  and  parol  evidence  may 
be  resorted  to  for  the  ])uri)ose  of  designating  what  particular 
land  both  parties  had  reference  to.****  In  other  words,  if  the 
writing  itself  discloses  the  essential  fact  that  the  minds  of 
the  parties  met  with  resi)ect  to  a  certain  property;  that  one 
agreed  to  sell  and  the  other  to  purchase  same,  then  parol 
evidence  of  existing  facts  and  circumstances  is  admissible  for 
the  purpose  of  specific  designation. 

so  McAnnulty  v.  McAnnulty,  120  245;  Kennedy  v.  Gramling,  33  S. 
111.  26.  C.  367. 

87  Preble   v.   Abrahams,   88    Cal.        es  Kennedy  v.  Gramling,  33  S.  C. 

367. 


CHAPTER  VI. 


THE   RELATION   OF   THE   PARTIES. 


174. 

Generally  considered. 

§189. 

175. 

Option  of  purchase. 

190, 

176. 

When  equitable  title  vests. 

191, 

177. 

Death  of  one  of  contracting 

parties. 

192. 

178. 

Subsequent    insolvency    of 

the  parties. 

193, 

179; 

Payment  of  taxes. 

180. 

Interest — Rents  and  profits. 

194, 

181. 

The  risk  of  loss. 

182. 

Duty    of    repairing    build- 
ings. 

195. 

183. 

Right  of  possession. 

184. 

Delivery  of  possession. 

196, 

185. 

Rights  of  vendee  in  posses- 

sion. 

197, 

186. 

Vendee's   assertion   of  hos- 

tile title. 

198, 

187. 

Vendee's  possession  not  ad- 

verse. 

199, 

188. 

Vendee     may      attorn     to 
stranger. 

Judgments  against  vendor. 

Judgments  against  vendee. 

Vendor's  possession  after 
sale. 

Vendor's  possession  after 
conveyance. 

Destruction  of  property — 
Proceeds  of  insurance. 

Continued — Rights  of  op- 
tion holder. 

Continued — Effect  of  pro- 
viso respecting  insurer's 
interest. 

Effect  upon  insurance  of 
proviso  against  sales. 

Continued — Assignment  of 
policy. 

Effect  of  condemnation  pro- 
ceedings. 

Effect  of  mechanics'  liens. 


§  174.  Generally  considered.  There  is  a  marked  difference 
with  respect  to  the  relative  rights  and  liabilities  of  the  parties 
in  the  case  of  an  ordinary  executory  contract  at  law  and  in 
equity.  At  law  the  contract  receives  only  the  interpretation 
expressed  upon  its  face,  and  confers  upon  the  parties  mere 
rights  of  action;  the  estate  remains  the  property  of  the  ven- 
dor, and  the  unpaid  purchase  money  that  of  the  vendee.^  But 
in  equity  the  positions  are  reversed:  the  estate,  from  the  mak- 
ing of  the  contract,  is  regarded  as  the  property  of  the  vendee, 
attended  by  most,  if  not  all,  of  the  incidents  of  ownership, 
while  the  purchase  money  is  considered  as  belonging  to  the 
vendor.2     This  result  is  accomplished  by  the  application  of 


1  Lombard  v.  Sinai  Congregation,    J.  Eq.  599;  Kerr  v.  Day,  14  Pa.  St. 
64  111.  477.  112;    Dorsey  v.  Hall,  7  Neb.   464; 

2  Lombard  V.  Sinai  Congregation,    Pease  v.  Kelly,  3  Oreg.  417;  Baum 
64  111.  477;  King  v.  Ruckman,  21  N.    v.  Grigsby,  21  Cal.  175. 

218 


THE  RELATION   OF   THE   PARTIES.  219 

the  familial'  piinciiilc  that  (-(jiiit^'  hjol^s  iijKtii  iliiii^s  aj^rccd 
to  be  done  as  actually  performed;  and  hence  a  contract  for 
the  sale  of  land  is,  for  most  purposes,  regarded  in  ecjuity  as  if 
already  specifically  executed."'  This  doctrine,  thouj^h  but  a 
legal  fiction  by  which  to  work  out  cei-tain  ends  or  secure  the 
attainment  of  a  more  complete  administration  of  justice,  has 
raised,  as  a  corollary  of  its  application,  the  further  doctrine 
that  the  vendee  is  to  be  considered  as  trustee  of  the  jjurchase 
mone}'  for  the  vendor,  and  the  vendor  in  turn  is  regarded  as 
the  trustee  of  the  land  for  the  vendee;^  and  this  trust  binds 
and  adheres  to  the  land  until  it  passes  into  the  hands  of  a 
bona  fide-  purchaser  for  a  valuable  consideration  without 
notice.^  The  relation,  therefore,  is  analogous  to  that  of  eipiit- 
able  mortgagor  and  mortgagee,  the  vendor  holding  the  legal 
title  as  security  for  the  unpaid  purchase  money,  which  secur- 
ity, it  has  been  held,  is  essentially  a  mortgage  interest.  The 
vendee  has  an  equity  of  redemption,  and  the  vendor  a  correla- 
tive right  of  foreclosure  upon  default  in  the  pajinents.*'  But 
in  this,  as  in  all  similar  cases,  the  mortgage  is  the  incident, 
the  debt  the  principal,  and  the  vendor  has  no  further  interest 
except  to  the  extent  of  the  security  the  mortgage  affords  for 
his  debt.'''  Subject  to  these  rights  of  the  vendor,  the  vendee 
has  absolute  control  of  the  property,  and  may  dispose  of  it  or 
incumber  it  in  exactly  the  same  manner  as  land  to  which  he 
has  the  legal  title.^ 

^  King  V.  Ruckman,  21  N.  J.  Eq.  Lewis   v.    Hawkins,    23    Wall.    (U. 

599;  Kerr  v.  Day,  14  Pa.  St.  112.  S.)    125;    Burch  v.  Carter,  44  Ala. 

4  Craig  V.   Leslie,  3  Wheat.    (U.  116. 

S.)    578;   Maddox  v.  Rowe,  23  Ga,  o  Church  v.  Smith,  39  Wis.  492; 

431;    Lombard   v.   Sinai  Congrega-  King  v.  Ruckman,  21  N.  J.  Eq.  599; 

tion,   64   111.    477.      It   is  upon   the  Baldwin  v.   Pool,   74   111.   97;    Fitz- 

principle   of   the   transmission,   by  hugh    v.    Maxwell,    34    Mich.    138; 

the  contract,  of  an  actual  equitable  Dew    v.    Dellinger,    75    N.    C.    300; 

estate,    and    the    impressing   of   a  Reed  v.  Lukens,  44  Pa.  200;   Gary 

trust  upon  the  legal  estate  for  the  v.  Whitney,  48  Me.  516;   Miller  v. 

benefit  of  the  vendee,  that  the  doc-  Corey,     15     Iowa,     166;     Boon     v. 

trine   of  the   specific   performance  Chiles,  10  Pet.    (U.  S.)    177;   Con- 

of  contracts  for  the  sale  and  con-  ner  v.  Banks,  18  Ala.  42. 

veyance   of   land   mainly   depends.  t  Strickland    v.    Kirk,    51    Miss. 

Worrall    v.    Munn,    3S    N.   Y.    139;  795. 

Brewer  V.  Herbert,  30  Md.  301.  •<  Baldwin    v.    Pool.    74    111.    97; 

GWimbish  v.  Loan  Ass'n,  69  Ala.  Smith  v.  Price,  42  111.  399;  Ricker 

575;  Baum  v.  Grigsby,  21  Gal.  175;  v.  Moore,  77  Me.  295. 


220  THE  RELATION   OF   THE   PARTIES. 

But  while  the  vendee  may  sell  and  dispose  of  the  land,  sub- 
ject to  the  rights  of  the  vendor,  and  otherwise  assert  acts  of 
absolute  ownership  and  domiinion,  he  has  no  authority  to 
remove  annexations  of  a  jjermanent  character,  whether  made 
prior  or  subsequent  to  the  contract,^  or  to  impair  the  security 
it  affords  by  waste;  for  as  long  as  any  part  of  the  purchase 
money  remains  unpaid,  the  land  with  its  accretions  of  every 
character  remains  pledged  for  the  satisfaction  of  the  vendor's 
lien,  and  until  the  whole  of  the  purchase  money  has  been  paid 
the  vendor  is  not  a  mere  naked  trustee,  but  holds  and  retains 
an  interest  in  the  land.^^ 

§  175.  Option  of  purchase.  Tbe  remarks  of  the  foregoing 
paragraphs  have  reference,  however,  only  to  bilateral  con- 
tracts; for  an  agreement  whereby  the  owner  of  land  merely 
gives  to  a  prospective  vendee  the  right,  option  or  refusal  to 
purchase  at  any  time  in  the  future,  confers  upon  the  party 
having  such  option  no  interest,  either  legal  or  equitable,  in 
the  land.  It  is  not  a  contract  of  sale  within  any  definition 
of  the  term,  and  at  best  but  gives  to  the  option-holder  a  right 
to  purchase  upon  the  terms  and  conditions,  if  any,  specified  in 
the  agreement  or  proposal.  The  right,  to  be  made  available, 
must  be  exercised  at  or  within  the  time  specified  in  the  agree- 
ment,^^ or  within  a  reasonable  time  if  the  option  is  not  lim- 
ited,^ 2  aji(j  the  conditions  precedent,  if  any  are  annexed,  must 
be  faithfully  and  punctually  observed.^^  ^  partial  perform- 
ance of  some  of  the  stipulations  which  it  is  intended  shall 
form  a  portion  of  the  future  contract  of  sale,  while  they  may 
indicate  an  intention  to  make  the  purchase,  does  not  confer 
any  additional  rights  upon  the  prospective  purchaser  w^here 
the  conditions  upon  which  the  option  and  right  of  purchase 
depends  have  not  been  complied  with;  and  the  non-com- 
pliance with  such  conditions  is  a  sufficient  ground  for  a  denial 
of  any  claim  of  right  in  the  land  under  the  agreement.^^ 

But  where  the  owner  of  lands  gives  to  another  an  option  of 
purchase,  and  imposes  certain  conditions  upon  the  party  to 

0  Smith  V.  Moore,  26  HI.  392;  but  12  Larmon  v.  Jordan,  56  111.  204. 

see  Raymond  v.  White,  7  Cow.  (N.  I'f  Bostwick  v.  Hess,  80  111.  138; 

Y.)  319.  Longfellow  v.  Moore,  102  IlL  289; 

loSwepson  v.  Rouse,  65  N.  C.  34.  Sutherland  v.  Parkins,  75  111.  338; 

11  Martin  v.  Morgan,  87  Cal.  203;  Gusti-n  v.  School  Dist.  94  Mich.  502. 

Harding  v.  Gibbs,  125  III.  85.  i*  Bostwick  v.  Hess,  80  111.  138. 


THE  RELATION   OF  THE  PARTIES.  231 

whom  tbe  option  is  given,  wliicli  liave  been  hy  him  duly 
observed  and  performed,  a  different  relation  is  created.^  ^  The 
])erformanc'e  of  the  conditions  aniounls  (o  an  acceptance,  and 
creates  a  mutuality  and  a  consideration  for  the  agreenu-nt  to 
convey.  The  party  to  whom  the  oiler  was  made  having 
actually  done,  upon  the  promise  of  the  owner,  what  he 
required  to  have  done,  it  is  then  too  late  for  the  owner  to 
recede;  and  it  is  immaterial,  in  such  event,  that  the  acts  were 
X)erformed  without  any  previous  undertaking  on  the  part  of 
the  vendee.^ ^ 

The  legal  effect  of  an  option  is  that  of  a  continuing  offer  to 
sell,  which  is  capable  of  being  converted  into  a  valid  contract 
by  a  tender  of  the  purchase  money  or  performance  of  pre- 
scribed conditions,  within  the  time  stated  and  before  the  offer 
is  withdrawn.  If  not  based  upon  a  consideration  the  offer 
may  be  withdrawn  at  any  time  before  acceptance;!^  if  given 
for  a  consideration  it  is  so  far  a  contract  as  to  vest  an  inde- 
feasible right  to  exercise  the  privilege  granted  within  the 
time  limited.!^ 

It  will  further  be  observed  that  a  mere  offer  to  sell,  unless 
otherwise  expressly  provided,  is  personal  in  its  nature  and 
confined  to  the  option-holder;  and  hence,  if  the  one  possessing 
such  privilege  fails  to  exercise  it  during  the  period  limited  for 
acceptance,  or  dies  within  such  period  without  accepting,  he 
has  no  estate  in  the  land  which  can  descend  to  his  heirs,  nor 
will  they  have  any  right  to  accept  the  proposal  within  the 
time  allowed  their  ancestor.^"  Nor  does  an  option  create  a 
transmissible  right  of  property  in  the  holder  thereof  while 
living  or  confer  any  substantial  interest  in  the  land  which 
may  be  sold  or  conveyed  to  another.^o  There  are  a  few  cases 
which  seem  to  militate  against  this  position,  but  they  do  not 
represent  the  generally  received  doctrines  in  regard  to  same.-^ 

§  176.  When  equitable  title  vests.  The  oft-asserted  propo- 
sition that,  from  the  time  of  the  contract  for  the  sale  of  land. 

If'  As  where  the  vendee  is  to  im-  lo  Sutherland  v.  Parkins,  75  111. 

prove  the  tract,  pay  taxes,  etc.  338;    Newton  v.  Newton,  11  R.  I. 

10  Perkins  v.  Hadsell,  50  111.  216.  390. 

IT  Gordon    v.    Darnell,     5    Colo.  20  Bras  v.  Sheffield,  49  Kan.  702. 

304;  Bradford  v.  Foster,  87  Tenn.  21  See  Kerr  v.   Day,   14   Pa.   St. 

8;  Larmon  v.  Jordan,  56  111.  204.  112;    Peoples  Ry.   Co.   v.   Spencer, 

18  See  §  125  ante.  156  Pa.  St.  85. 


222  THE  RELATION   OF  THE  PARTIES. 

the  vendor  as  to  the  land  becomes  a  trustee  for  the  purchaser, 
and  the  latter  as  to  the  purchase-money  becomes  a  trustee 
for  the  vendor,  who  has  a  lien  upon  the  land  therefor,  while 
fully  expressuig  the  rule  of  equity  in  its  j^eneral  application, 
is  nevertheless  subject  to  some  qualification  under  special  cir- 
cumstances, and  is  not  of  such  potency  as  to  establish  an  equit- 
able title  in  the  purchaser  in  opposition  to  expressed  intent  or 
clear  legal  implication.  The  essential  feature  of  an  equitable 
title  is  that  it  is  one  which  appeals  to  equity  for  confirmation 
and  enforcement.  Hence,  a  mere  contract  or  covenant  to 
convey  at  a  future  time,  on  the  purchaser  performing  certain 
acts,  does  not  create  an  equitable  title.  It  is  only  when  the 
purchaser  performs  or  tenders  performance  of  all  the  acts 
necessary  to  entitle  him  to  a  deed  that  he  has  an  equitable 
title  and  may  compel  a  conveyance.  Prior  thereto  he  has,  at 
best,  only  a  contract  for  the  land  when  he  shall  have  per- 
formed his  part  of  the  agreement.22 

§  177.  Death  of  one  of  contracting  parties.  In  framing 
agreements  for  the  purchase  of  land  it  is  an  almost  universal 
custom  for  the  parties  to  contract  as  well  for  their  heirs  and 
personal  representatives  as  for  themselves;  and  even  though 
this  formality  be  omitted  from  the  memorandum,  the  result 
will  be  the  same;  for  the  law  presumes  that  the  contingency 
of  death  was  present  in  their  minds,  and  that  they  intended 
to  bind  not  only  themselves,  but  those  into  whose  hands  the 
property  might  fall  in  the  event  of  death  prior  to  execution. 
Indeed,  the  executor  or  administrator,  for  all  practical  pur- 
poses, is  the  decedent  himself  and  is  liable  in  general  to  the 
extent  of  the  assets  which  may  come  to  his  hands  upon  all 
contracts  of  the  deceased  remaining  undischarged  at  his 
death.23 

To  the  general  proposition  as  last  stated  there  is  but  one 
well-established  exception,  and  this  arises  only  when  the  per- 
formance of  the  contract  is  personal  in  its  nature.  Just  what 
constitutes  this  exception  the  authorities  do  not  inform  us 
with  any  degree  of  certainty  or  particularity;  but  the  illustra- 

22ChappeIl  v.  McKnight,  108  111.  Green  v.  Rugley,  23  Tex.  539;  Bil- 

570.  lings'  Appeal,  106  Pa.  St.  558;  Fow- 

23Phalman  v.  King,  49  111.  266;  ler  v.  Kelly,  3  W.  Va.  71;    Bell  v. 

Brown  v.   Leavitt,   26   N.   H.   493;  Hewitt,  24  Ind.  280;  Hiatt  v.  Will- 


THE  RELATION   OF  THE  PARTIES.  223 

tions  ordinarily  put  of  jx'r.sonal  contractH  on  wliicli  no  liability 
attaclu'S  to  the  l('}j;al  rcprcscntalivcs,  unless  a  Ijrcacli  occurred 
in  the  lifetime  of  the  deceased,  indicate  those  only  which 
require  individual  skill  or  knowledge,  or  services  which  the 
contractor  alone  can  perform."-*  So  far  as  the  oblij^alion  is  to 
convey  real  estate,  of  course  these  would  not  apply;  yet  in 
cases  of  bilateral  contracts  they  niij^ht  i>lay  an  important 
part,  the  inability  of  perfonnance  on  one  side  excusinj^  or  pre- 
venting performance  on  the  other. 

The  mere  fact  of  jteisoiial  service  is  not  the  controlling  test, 
however,  and  if  the  i-ontcmplated  services  are  of  such  a  nature 
that  they  may  be  lu'rfonned  by  others,  the  reason  of  the  rub- 
does  not  apply  and  the  contract  will  survive;-''  yet  the  whole 
(piestion  in  every  case,  from  the  dilhculties  which  surround 
its  solution,  must  necessarily  depend  upon  attendant  circum- 
stances and  the  manifest  intention  of  the  parties.^^ 

The  vendor,  being  regarded  simply  as  a  trustee  having  an 
interest  in  the  proceeds,  but  not  in  the  land,  this  interest 
would  pass  u])on  his  death  to  his  personal  representatives,  and 
not  to  his  heirs;  and,  while  the  heirs  would  take  the  legal  title 
by  descent,  yet  they  would  hold  such  title  only  as  it  was  vested 
in  the  ancestor,  which  was  only  as  a  mere  securit}^  for  a  debt. 
The  debt,  it  is  true,  would  be  payable  to  the  executor  or 
administrator  of  the  vendor;  but  as  the  land  is  considered 
to  be  held  by  the  heirs  in  trust,  and  simply  as  a  pledge  or 
security  for  its  payment,  on  the  payment  of  the  debt  the  heirs 
would  be  compelled  in  equity  to  execute  the  trust  by  a  con- 
veyance of  the  title,  while  the  X)urchase  money  would  go  to 
the  personal  representatives.-"  The  theory  upon  which  this 
proceeds  is,  that  a  valid  contract  works  an  equitable  conver- 
sion of  land  into  personalty  from  the  time  it  is  made,  and 
hence  the  purchase  money  becomes  a  part  of  the  vendor's 


iams,  72  Mo.  214 ;  Stephens  v.  Rey-  =6  Billings'   Appeal,   106   Pa.    St. 

nolds,  6  N.  Y.  458;  Wright  v.  Tins-  558. 

ley.  30  Miss.  389.  27  Johnson  v.   Corbett,   11   Paige 

-•4  Janin  v.  Browne,  59  Cal.  44;  (N.  Y.),  265;  Moore  v.  Burrows,  34 

Billings'  Appeal,  106  Pa.  St.  558.  Barb.  (N.  Y.)  173;  Craig  v.  Leslie, 

^■''' Hawkins  V.  Ball's  Adni'r.  18  B.  3    Wheat.    (U.    S.)    563;    Miller   v. 

Mon.  (Ky.)  816;  Janin  v.  Browne,  Miller.  25  N.  J.  Eq.  354.    A  vendor 

59  Cal.  44.  may  devise  land  contracted  to  be 


224  THE  RELATION   OF   THE   PARTIES. 

estate,  and  is  distributable  upon  his  death  among  his  legatees 
or  next  of  kin.-^ 

The  equity  which  is  vested  in  the  vendee  is  a  proper  subject 
of  devise  by  him,  and  will  descend  to  his  heirs  the  same  as 
realty.  The  same  rights  which  were  possessed  by  their  ances- 
tor will  devolve  on  them,  and  they  may  have  an  enforcement 
of  the  contract  in  their  own  favor.  Hence,  where  there  is  a 
contract  for  the  purchase  of  land,  inasmuch  as  it  descends 
in  equity  to  the  heirs  of  the  vendee  as  real  estate,  they  may 
call  on  the  executors  or  administrators  to  discharge  the  con- 
tract out  of  the  personal  estate  so  as  to  enable  them  to  demand 
a  conveyance  from  the  vendor.^^ 

§  178.  Subsequent  insolvency  of  the  parties.  If  after  the 
contract  has  been  entered  into  either  vendor  or  vendee  should 
become  bankrupt,  the  contract  will  not,  for  that  reason,  be 
discharged  or  otherwise  materially  affected.  An  adjudication 
In  bankruptcy,  as  well  as  an  assignment  for  creditors,  has  the 
effect  of  an  absolute  conveyance  by  which  all  the  estate  of  the 
bankrupt  is  vested  in  the  assignee;  but  the  title  in  the  hands 
of  the  assignee  is  relieved  of  none  of  its  burdens.^*^  It  is  no 
better  than  that  held  by  the  bankrupt,  and  if  sold  by  such 
assignee  the  purchaser  takes  it  charged  with  all  the  equities 
to  which  it  was  originally  subject.^i  The  theory  is  that  an 
assignee  does  not  take  title  as  an  innocent  purchaser  without 
notice,  free  from  latent  equities,  etc.,  but  as  a  mere  volunteer 
standing  in  the  shoes  of  the  bankrupt,  as  respects  the  title, 
and  having  no  greater  rights  in  that  regard  than  the  bankrupt 
himself  could  assert.^^  ^s  between  the  assignee  and  a  vendee 
of  the  bankrupt  the  rights  of  such  vendee  will  remain  intact, 
notwithstanding  he  may  have  neglected  to  place  upon  record 
the  evidence  of  his  claim;  as  between  him  and  a  purchaser 
from  the  assignee  his  rights  will  still  be  preserved  if  he  has 
taken  the  precaution  to  impart  notice  by  any  of  the  methods 
which  the  law  directs,  upon  the  principle  that  every  subse- 

sold  to  another  person,  but  the  dev-  -f>  Champion  v.  Brown,  6  Johns, 

isee    will    take    the    title    charged  Ch.   (N.  Y.)   398. 

with  a  trust  for  the  benefit  of  the  so  Williams  v.  Winsor,  12  R.  I.  9. 

contract  vendee.    McCarty  v.  Mey-  ai  Walker  v.  Miller,  11  Ala.  1076; 

ers,  5  Hun  (N.  Y.),  83.  Stow  v.  Yarwood.  20  111.  497;  Har- 

28  Miller  v.  Miller,  25  N.  J.  Eq.  din  v.  Osborne,  94  111.  571. 

365.  32  Hardin  v.  Osborne,  94  111.  571. 


THE  RELATION   OF  THE   PARTIES.  225 

qucnt  purchaser  from  the  vendor,  with  notice,  becomes  subject 
to  the  same  equities  as  the  party  from  whom  he  purchased; 
but  if  the  hind  is  conveyed  to  an  innocent  i)urchaser  without 
notice,  who  places  his  deed  upon  record  before  that  of  the  prior 
purchaser,  such  prior  purchaser  could  not  set  up  or  show  an 
unrecorded  deed  or  agreement  to  defeat  the  title  of  the 
assij^uee's  j^rantee.-"*^ 

§  179.  Payment  of  taxes.  The  payment  of  taxes  is  a  legal 
duty  devohing  ujion  each  and  evei-y  person  legally  or  etpii- 
tably  interested  in  the  land  charged  by  the  tax.  Primarily 
the  duty  of  paying  the  same  rests  upon  the  person  who  holds 
the  legal  title,  and  in  the  assessment  and  levy  of  the  tax  such 
person  is  usually  designated  by  name.  In  this  case  the  duty 
is  a  direct  legal  obligation,  enforceable,  if  necessary,  in  an 
action  of  debt;  and  the  obligation  is  ecpially  binding  upon  a 
vendee  who  has  stipulated  or  agreed  to  pay  the  same.*^^  A 
vendee,  prior  to  convej'ance,  who  has  not  so  agreed,  will  not 
be  directly  responsible  for  such  tax;  yet  if  his  vendor  should 
neglect  to  pay  the  same,  and  to  protect  his  equity  the  vendee 
is  obliged  to  discharge  the  tax,  he  will  be  considered  only 
as  having  performed  a  duty  incumbent  upon  him  as  a  party 
in  interest.  He  may  have  recourse  over  against  his  vendor 
under  his  covenants,  but  as  respects  the  title  he  can  gain  no 
advantage.  He  cannot  become  a  purchaser  at  any  sale  held 
for  such  taxes;  and,  should  he  become  such,  the  payment  of 
the  money  will  be  regarded  only  as  a  payment  of  the  tax, 
and  not  as  a  purchase  of  the  property.^^  As  between  the 
parties,  all  paj'ments  of  taxes  made  by  the  vendee  are  pre- 
sumed to  be  made  on  behalf  of  the  vendor.^*^ 

As  between  vendor  and  vendee,  prior  to  conveyance,  the 
question  as  to  who  shall  pay  the  current  taxes  does  not  seem 
to  be  of  frequent  occurrence  in  the  courts.  It  is  usually  made 
a  matter  of  a  special  stipulation  in  agreements  for  convey- 
ance, and  in  cases  where  this  has  been  omitted  is  regarded  as 
a  duty  incumbent  on  the  vendor,  who  must  of  necessity  pay 

23  Holbrook  v.  Dickenson,  56  111.  Ballame  v.  Forsythe.  13  How.   (U. 

497.  S.)  18;  Fitzgerald  v.  Spain.  30  Ark. 

34  Fitzgerald    v.    Spain,    30    Ark.  334;   Williams  v.  Townsend,  31  N. 

334.  Y.  411. 

s".  See  Bailey  v.  Doolittle,  24  111.        38  Lamborn  v.  Dickenson  County, 

577;  Glancy  v.  Elliott,  14  111.  456;  97  U.  S.  181. 
15 


226  THE  RELATION   OF  THE  PARTIES. 

the  taxes  levied  or  assessed  at  tlie  time  of  his  deed  in  order 
to  keep  good  the  covenants  therein  contained.  It  has  been 
held,  however,  that  in  contracts  for  the  sale  of  land,  silent 
as  to  the  payment  of  taxes,  the  party  in  the  actual  possession 
of  the  land  should  keep  down  the  taxes,^^  and  that  where  the 
land  is  vacant  a  vendee,  who  by  full  performance  on  his  part 
is  entitled  to  possession  by  implication  of  law,  should  there- 
after pay  the  taxes."*^ 

In  agreements  for  exchange  it  is  usual  to  make  specific 
mention  of  the  taxes  and  to  provide  for  their  payment;  but 
unless  it  clearly  appears  as  to  wiiat  lands  each  of  the  parties 
is  to  assume  the  taxes,  or  where  the  matter  is  referred  to  only 
in  general  terms,  it  will  be  considered  that  the  stipulation 
applies  to  the  property  each  party  is  selling  and  not  to  that 
which  each  is  receiving.^'-* 

§  180.  Interest — Rents  and  profits.  Where  a  speedy  con- 
summation of  the  sale  is  contemplated  it  is  not  customary, 
as  contracts  are  now  drawn,  to  stipulate  for  interest  on  the 
one  hand  or  with  respect  to  rents  and  profits  on  the  other. 
The  vendor  usually  remains  in  the  possession  of  the  property, 
while  the  vendee,  with  the  exception  of  whatever  may  have 
been  paid  by  the  way  of  earnest,  retains  the  purchase  money. 
Yet,  as  equity  regards  as  actually  x^erformed  that  which  is 
agreed  to  be  done,  it  would  seem  that  a  purchaser  is  entitled 
to  the  j)rofits  of  the  estate  from  the  time  fixed  upon  for  com- 
pleting the  contract;  and  as  the  money  from  that  time  belongs 
to  the  vendor,  the  purchaser  should  be  compelled  to  pay  inter- 
est for  it.^o  Certainly  this  should  be  the  case  where  unavoid- 
able long  delays  intervene,  or  where  delay  is  attributable  to 
the  fault  or  neglect  of  either  party,  the  other  party  being  in 
no  way  blamable. 

As  a  general  rule  interest  on  the  purchase  money  should 
commence  when,  b}'  the  terms  of  the  contract,  such  money  is 

37  Farber  v.  Purdy,  69  Mo.  601.  specific     performance     was    after- 

3s  Sherman    v.    Savery,    2    Fed.  wards  entered. 

Rep.  505.    Further  held  in  this  case  '^o  Morrison   v.   Wasson,   79   Ind. 

that  it  is  no  defense  against  such  477. 

obligation  that  the  vendor  refused  4o  See    Parke    v.    Leewright,    20 

to  convey  to  him,  but  conveyed  to  Mo.  85;  Hundley  v.  Lyons,  5  Munf. 

another  against  whom  a  decree  for  (Va.)  342;  Cleveland  v.  Burrell,  25 


THE  RELATION   OF   THE   PARTIES.  227 

diic;"  and  if  I  he  dclav  in  (•(unplci  in;;  I  he  contracl  is  ullrib- 
iitiible  to  tlic  ]»nr(lias('r,  lie  will  he  conijicllrd  lo  pay  inlercsl 
from  till'  time  (lie  contracl  on^lil  to  have  In-vn  carried  into 
effect,  althon^li  the  nH)ney  may  have  lieen  lyin^'  ready  and 
willionl  inlii'fsl  heinj;  made  upon  i(.  Hut  if  ilie  delay  has 
been  occa.su)ned  by  (hdanll  of  the  vendor,  and  the  money  lias 
been  kept  ready  and  unprodiiclive  in  liie  hands  of  the  puv- 
c'baser,  he  will  not  be  ol)li;^^ed  to  j»ay  interest.-*-  It  seems, 
however,  that  the  inirchaser  slionld,  in  ^^-neral,  <^ive  notice 
to  the  vendor  that  the  money  is  icady  and  jiroducinj;  uotli- 
ing;-*-'  for  otherwise  it  is  said  there  is  no  eiiuity,  as  the  one 
knows  the  estate  is  ]»rodncin^'  profit,  while  the  other  does 
not  know  that  the  money  does  not  produce  interest;^*  yet,  even 
though  such  notice  be  given,  if  the  money  is  noractually  and 
in  good  faith  ajtpropriated  for  the  purchase — if  the  vendee 
uses  it  in  any  manner  so  as  to  gain  some  advantage  from  it 
— he  may  still  be  compelled  to  pay  interest.-*^ 

If  no  time  be  limited  for  the  performance  of  the  agreement, 
and  if  the  purchaser  is  let  into  possession  thereunder  he 
should  pay  interest  on  the  unpaid  purchase  money  from  that 
time,-*^  as  in  contemplation  of  law  he  is  in  the  enjoyment  of 
the  rents  and  profits  of  the  land.  In  cases  of  vacant  property, 
wild,  uncultivated  or  unproductive  land,  it  has  been  held  that 
a  contract  to  pay  interest  will  not  be  implied  where  the 
purchaser  is  prevented  from  obtaining  title  by  the  fault  or 
negligence  of  the  vendor,  notwithstanding  such  purchaser 
has  been  in  possession  ;^'^  but  ordinarily  the  rule  first  stated 
will  apply,  and  it  must  be  a  strong  case,  clearly  made  out, 
in  w'hich  the  purchaser  will  not  be  obliged  to  i^ay  interest 
where  he  has  received  the  rents  and  profits.^^ 

\Mth  respect  to  interest  payable  by  the  vendor  the  cases 

Barb.     (N.    Y.)    532;    Hepburn    v.  45  Davis     v.     Parker,     14     Allen 

Dunlap,  1  Wheat.  (U.  S.)  179.  (Mass.),  104. 

■»!  Baxter  v.  Brand,  6  Dana  (Ky.),  <«  Stevenson  v.  Maxwell.  2  Corast. 

298.  (N.  Y.)  408;  Ramsay  v.  Brailsford. 

•»-^  Hunt  V.  Brand,  1  A.  K.  Marsh.  2    Des.    (S.    C.)    592;    Hundley    v. 

(Ky.)    161;    McKay   v.    Melvln,    1  Lyons,  5  Munf.   (Va.)  342. 

Ired.  (N.  C.)  73.  47  Stevenson  v.  Maxwell,  2  Sandf. 

43  Brockenbrough    v.    Blythe,    3  Ch.   (N.  Y.)   273. 

Leigh    (Va.),  619.  ••>*  Selden  v.  James.  6  Rand.  (Va.) 

44  Selden  V.  James,  6  Rand.  (Va.)  465;  Cullum  v.  Bank.  4  Ala.  22; 
465;  Hunter  V.  Bales,  24  Ind.  299.        Boyce  v.  Britchett,  6  Dana   (Ky.) 


228  THE  RELATION  OF  THE  PARTIES. 

are  rai'o  where  this  will  piwvail.  The  deposit,  by  the  terms 
of  the  agreement,  is  usually  forfeited  to  the  vendor  in  ease 
of  noncompliance  on  the  part  of  the  vendee,  and  where, 
througii  fail  lire  of  title  or  other  inability  by  the  vendor  to 
consummate  the  sale  according  to  the  tenns  of  the  contract, 
the  deposit  is  usually  returned  without  allowance  for  its  use. 
It  has  been  held,  however,  that  where  a  purchaser  is  entitled 
to  recover  at  law  a  deposit  paid  by  him  to  the  vendor,  he 
can  also  recover  interest  on  it  from  the  time  it  was  paid, 
without  an  express  agreement."*^ 

It  would  seem  to  be  the  rule  in  England  that  if  a  vendor 
cannot  make  a  marketable  title,  and  the  purchaser's  money 
has  been  lying  ready  without  interest  being  made  by  it,  the 
vendor  must  pay  interest  to  the  purchaser ;^o  ^nd  this  has 
been  recognized  to  some  extent  in  this  country.^^ 

The  right  to  rents  and  profits  accrues  when  the  purchaser 
is  entitled  to  possession,^^  ^nd  a  vendor  retaining  the  posses- 
sion should  account  to  the  purchaser  for  the  rents  and  profits 
from  the  time  possession  was  to  have  been  surrendered.^^  If 
in  the  contract  no  day  is  specified  for  delivering  the  deed  and 
the  surrender  of  possession,  but  the  money  is  to  be  paid  on 
delivery  of  the  deed,  it  must  be  understood  that  the  deed  is 
to  be  delivered  and  possession  given  without  delay.  If,  there- 
fore, this  be  not  done,  the  vendor  is  bound  to  account  for 
and  pay  over  the  profits  of  the  land  received  by  him  after 
the  contract  was  made — the  vendee,  of  course,  to  pay  interest 
on  the  money  from  the  time  it  would  have  been  payable  if 
the  deed  had  been  immediately  delivered.'^^ 

231.    A  vendee,  who  enjoys  the  es-  terest  from  the  time  the  debt  is 

tate    and    withholds   the   purchase  liquidated  until  he  makes  a  title; 

money  until  a  dispute  in  the  title  and  the  vendee  is  accountable  for 

is  adjusted,  ought  to  pay  interest,  the  rents  and  profits  from  the  time 

Breckenridge    v.    Hoke,    4     Bibb,  the  title  is  perfected  until  the  con- 

(Ky.),  273.  tract     is     specifically     performed. 

49  See  Teaffe  v.  Simmons,  11  Al-  Hepburn  v.  Dunlap,  1  Wheat.  (U. 
len  (Mass.),  342.  S.)  179. 

50  2  Sugd.  Vend.  330.  ^2  Baxter  v.  Brand,  6  Dana  (Ky.), 

51  See    Williams    v.    Rogers,     2  298. 

Dana   (Ky.),  375.    Where  the  ven-  53  Mason  v.   Chambers,   3   T.   B. 

dor  is  indebted  to  the  vendee  and  Mon.   (Ky.)   323. 

the  sale  is  made  in  order  to  pay  54  Hundley    v.    Lyons,    5    Munf. 

the  debt,  the  vendor  must  pay  in-  (Va.)   342. 


THE   RELATION   OF   THE   PARTIES.  220 

W'licii  u  toiitracl  fur  (he  sale  of  land,  wliieh  tin-  jjurchasei' 
has  paid  for  and  was  put  in  possession  of,  is  rescinded  for 
causes  free  of  fraud,  tlie  use  of  the  nionev  and  the  use  of  tlie 
hind  are  held  to  bahince  each  otlier.  The  decree  shouhl  in 
jjeneral  restore  the  money  to  the  purdiaser  without  interest, 
and  the  hind  to  the  vendor  \vitho\it  rents  or  profits.  \Uit  if 
the  purchaser  has  made  valuabh*  and  histin*;  improvemenls 
on  the  hind,  or  if  it  lias  suffered  in  his  hands  throu<;h  nej^lect 
oi-  misnianaj^ement,  then  these  thinj^s  are  the  subject  of 
valuation,  account  and  final  settlement  by  the  decree.'"'' 

V?  181.  The  risk  of  loss.  As  the  property  is  regarded  as 
belonging  to  the  vendee  from  the  time  of  the  delivery  and 
accei)tance  of  the  written  contract,  it  follows  that  any  loss 
arising  from  deterioration  between  the  agreement  and  con- 
veyance falls  upon  and  must  be  borne  by  him.^'^'  Hence,  if 
any  of  the  buildings  or  improvements  are  destroyed  by  fire 
during  this  period  the  vendee  must  bear  the  loss,^"  unless 
there  is  an  agreement  to  deliver  possession  with  improvements 
in  the  same  condition  as  at  the  time  of  sale,^'^  or  unless  the 
loss  occurs  by  the  culpable  negligence  of  the  vendor.'"'*  It  is 
the  duty  of  the  vendee  to  protect  himself  against  loss,  and 
failing  in  this  he  must  bear  the  same  if  any  is  entailed. 

This  rule,  in  its  application,  presupposes  an  ability  and  a 
willingness  to  convey  on  the  part  of  the  vendor;  for  the 
l)urchaser  in  a  case  of  this  kind  can  only  be  said  to  be 
owner  from  the  date  of  the  contract,  when  the  vendor  is 
prepared  to  convey'  a  clear  title  and  is  not  in  default.  If  the 
vendor  is  so  situated  that  he  cannot  make  title  according  to 
the  contract,  the  purchaser  will  not  be  regarded  as  the  owner; 
and  if  the  property  is  damaged  before  the  vendor  is  in  condi- 
tion to  convey,  the  loss  must  fall  on  him  and  not  on  the 
purchaser.*'*' 

§  182.  Duty  of  repairing  buildings.  It  would  seem  that  a 
party  agreeing  to  sell  and  convey  premises  at  a  future  day 

r-"'  Williams   v.    Rogers,    2    Dana  -'^  Marks   v.    Tichenor.    4    S.    W. 

(Ky.),  375.  Rep.    (Ky.)   225.     But  see,  contra, 

r>«  Reed  v.  Lukens,  44  Pa.  St.  200.  Wells  v.  Calnan,  107  Mass.  514. 

BT  Snyder  V.  Miirdock,  51  Mo.  175;  co  christian  v.  Cabell.  22  Gratt. 

Bautz  V.  Kuhworth,  1  Mon.  J.  133;  (Va.)    82;    and    see    Huguenin    v. 

Brewer  v.  Herbert.  30  Md.  301.  Courtenay,  21  S.  C.  403. 

68  Goddard  v.  Bebout,  40  Ind.  115. 


230  THE  RELATION   OF   THE   PARTIES. 

does  not,  iu  the  absence  of  stipulations  to  that  effect,  owe  the 
vendee  any  duty  to  keep  them  in  good  repair  or  to  guard 
against  the  decay  which  is  due  to  time  and  ordinary  use.*'^ 

§  183.  Right  of  possession.  It  is  a  rule  of  law  that  the 
legal  title  of  laud  draws  to  it  the  right  of  possession,  and 
wherever  this  title  rests  there  also  lies  the  right  of  possession 
and  occupancy.  Hence,  the  mere  purchase  of  land  does  not 
authorize  the  purchaser  to  enter  into  possession  without 
license  from  the  seller.*'-  Such  license  may  be  express  or 
implied  from  the  circumstances;"-^  but  a  simple  agreement  to 
convey  title  at  some  future  day  does  not  in  itself  confer  it, 
and  if  unaided  by  other  facts  is  no  evidence  of  possessory 
rights.''^  The  purchaser  may  enter  under  such  license,  but  his 
possession  is  after  all  only  the  possession  of  the  vendor.  By 
the  purchase  he  recognizes  the  vendor's  title,  and,  like  a 
tenant,  in  all  proceedings  for  the  recovery  of  the  possession 
by  the  vendor,  is  estopped  from  disputing  his  title.  He  enters 
and  holds  under  the  title  of  the  vendor,  and  his  occupancy  is 
subservient  and  subordinate  to  that  title;  and  from  this  rela- 
tion and  for  the  same  reason  his  possession  becomes  as  fully 
that  of  the  vendor  as  does  that  of  a  tenant  become  that  of  the 
landlord.*'^  Still,  as  the  vendor,  though  in  law  the  owner  of 
the  legal  title,  holds  it  in  equit}^  simply  as  the  trustee  of  his 
vendee,  it  has  been  held  that  he  cannot  turn  his  beneficiary 
out  of  possession  so  long  as  the  latter  offers  to  perform  the 
contract.66 

It  has  been  held  that,  notwithstanding  the  rule  whereby 
possession  follows  the  legal  title  as  an  incident,  if  the  land  is 
vacant,  and  the  vendee  has  paid  the  entire  consideration  and 
fully  performed  on  his  part,  and  all  that  remains  for  the 
vendor  to  do  is  to  give  the  deed,  there  must  be  an  implied 
agreement  or  license  that  the  vendee  may  at  once  take 
possession  and  have  the  use  of  the  land.^'^    An  imi^lied  right 

ci  Hellreigel  v.  Manning,  97  N.  Y.  e*  Chappell  v.  McKnight,  108  111. 

56.  570;  Suffern  v.  Townsend,  9  Johns. 

«a  Chappell  V.  McKnight,  108  III.  (N.  Y.)   35;   Erwin  v.  Clinstead.  7 

570;    Williams    v.    Forbes,    47    111.  Cow.      (N.     Y.)      229;      Druse     v. 

148;    Druse  v.   Wheeler,   22   Mich.  Wheeler,  22  Mich.  439. 

439.  or,  Hale  v.  Gladfelder,  52  111.  91. 

G3  Chappell  v.  McKnight,  108  111.  «''>  Whittier  v.  Stege,  61  Cal.  238. 

570.  c- Miller  v.  Ball,  64  N.  Y.  293; 


THE  RELATION   OF  THE  PARTIES.  231 

of  possession  may  also  result  Iroin  a  fair  conslruetloii  of  iIil 
contract.  Tims,  a  contract  which  reserves  to  the  vendor  the 
rijfht  of  re-entry  in  case  the  {Mircliaser  niak<'s  default  in  his 
payments,  and  a  rij;ht  of  distress  uj)ou  the  jiremises  for  arrears 
of  interest,  or  provides  that  on  default  the  jturchaser  may  be 
rej^arded  as  a  tenant  holdinj^  over  without  penuission,  and  for 
the  recovery  of  damaj^es  for  waste,  j,'ives  tlie  vendee  the  rii^^ht 
of  possession  by  necessary  implication,  where  it  fails  to  do  so 
in  express  terms.^^ 

A  more  radical  view  has  been  taken  of  the  vendee's  ])Osses- 
sory  rights  in  some  of  the  states,  and  tlie  reservation  of 
interest  on  the  purchase  money  lias  been  offset  by  allowing 
the  purchaser  to  use  the  premises/^^ 

§  184.  Delivery  of  possession.  No  formality  of  any  kind 
is  now  required  to  ]»lace  a  purchaser  in  possession.  The 
delivery  of  a  key  by  the  vendor  at  the  conclusion  of  a  treaty 
for  the  sale  of  property  is  a  snnbol  indicative  of  the  delivery 
of  the  possession  of  the  house  or  lands  ])urchased  to  which 
the  key  belongs.'^*^  This  is  a  usual  formality  in  sales  of 
improved  property,  but  is  wholly  unnecessary  as  the  delivery 
of  the  deed  carries  with  it  the  right  of  possession,  and  such 
delivery  is  itself  an  all  sutticient  symbol. 

§  185.  Rights  of  vendee  in  possession.  \\'here  the  pur 
chaser  has  been  let  into  possession  he  is,  in  equity,  the  owner, 
subject  only  to  the  lien  of  the  vendor  for  the  uni)aid  purchase 
money.  lie  has  a  right  to  the  free  use  and  enjoi^inent  of  the 
propertj^  and  to  the  rents,  issues  and  profits  thereof,  so  long 
as  he  is  not  in  default  under  the  contract.  He  may  mortgage 
it  for  the  payment  of  his  debts;"^  may  sell  and  assign  his 
rights  to  another;  or  may  create  a  privilege  or  easement 
upon  any  part  of  the  premises  which  will  be  valid  and  bind- 
ing, but  liable  to  be  defeated  should  there  be  a  failure  to  pay 
the  balance  of  the  purchase  money  according  to  the  terms  and 
conditions  of  th»'  contract  of  purchase."-    The  vendor,  in  such 

Sherman   v.    Savery,    2   Fed.    Rep.  t2  As  where  the  vendee,  upon  re- 

505.  ceiving  a  bond  for  a  deed,  was  let 

C8  Martin  v.  Scofield,  41  Wis.  167.  into   possession,   and    while   so   in 

on  Drake  v.  Barton,  18  Minn.  462.  possession,    and    in    no    respect    in 

•70  Canal  Co.  v.  State,  53  Ind.  575.  default    under    the    contract,    con- 

71  Baker  v.   Bishop   Hill   Colony,  veyed     to     a     third     person     the 

45  111.  264.  privilege     or     right     to     build     a 


232  THE  RELATION   OF   THE  PARTIES. 

11  case,  canuot  interfere  with  tlie  free  use  and  enjoyment  of 
the  premises  by  the  vendee,  or  witli  any  one  having  a  privilege 
from  sneh  vendee,  ])rovided  tliat  there  is  no  lessening  of  the 
security  for  the  purchase  money  occasioned  thereby;"^  nor 
will  he  be  permitted  to  invade  the  possession  of  the  vendee 
or  his  assigns,  and  remove  any  of  the  natural  or  artificial 
objects  ujion  the  landJ^ 

§  186.  Vendee's  assertion  of  hostile  title.  It  may  be  stated 
as  a  general  rule,  that,  while  the  contracting  parties  are  in 
most  respects  supposed  to  stand  upon  a  footing  of  equality, 
by  which  each  is  entitled  to  the  benefit  of  his  own  judgment 
and  the  fruits  of  his  own  prudence  and  sagacity,  yet  with 
regard  to  the  property  the  relation  is  strictly  confidential, 
and  imposes  upon  either  party  the  due  observance  of  corre- 
sponding duties.  In  furtherance  of  this  principle  we  find 
authorities  announcing  the  doctrine  that  a  vendee  will  not 
be  permitted  to  buy  an  outstanding  incumbrance  or  other 
hostile  claim,  and  set  up  an  adverse  title  under  them  against 
his  vendor,"^  and  that  in  case  he  should  attempt  so  to  do  such 
acquisition  will  be  considered  as  having  been,  made  for  no 
other  purpose  than  the  protection  of  the  vendor's  title.^^ 
Indeed,  under  these  decisions,  both  vendor  and  vendee  are 

dam  across  a  creek  in  one  was  a  case  where  land  had  been 
corner  of  the  land  to  draw  off  the  sold  under  a  contract  and  the  pur- 
water  in  a  millrace  to  his  mill,  chaser  let  into  possession,  and  the 
Held,  on  a  bill  to  enjoin  him  from  vendor  went  upon  the  premises  and 
digging  said  race-way  and  dam,  removed  young  trees  and  orna- 
that  the  contract  which  he  had  ob-  mental  shrubs.  In  an  action  of 
tained  from  the  vendee  was  a  suf-  trespass  by  the  purchaser  the  court 
ficient  justification  as  against  the  said:  "The  defendant  had  no 
acts  charged  in  the  bill,  but  that  right  of  entry,  and  his  entry  was 
its  future  validity  would  depend  a  trespass;  and  he  is  liable  for 
upon  whether  there  should  be  a  all  injuries  done  to  the  premises, 
faithful  compliance  with  the  terms  which  was  in  fact  the  property  of 
and  conditions  of  the  contract  of  the  plaintiff,  subject  to  the  lien  of 
sale  on  the  part  of  the  purchaser,  the  defendant  for  the  unpaid  pur- 
Baldwin  v.  Pool,  74  111.  97.  And  chase  money."  See,  also,  Stow  v. 
see,  in  support  of  the  general  prop-  Russell,  36  111.  23. 
ositions  of  the  text.  Baker  v.  Bishop  "•'■-  Cromwell  v.  Craft,  47  Miss.  44; 
Hill  Colony,  45  111.  264;  Whitting-  Wade  v.  Thompson,  52  Miss.  367. 
ton  v.  Simmons,  32  Ark.  377.  "o  Kirkpatrick  v.  Miller,  50  Miss. 

73  Baldwin  v.  Pool,  74  111.  97.  521;  Wilkinson  v.  Green,  34  Mich. 

74  Smith  V.  Price,  42  111.  399.  This  221. 


THE  RELATION   OF   THE   PARTIES.  233 

estopped  fruin  buyiuj;  in  a  title  adverse  to  the  other  uuless  it 
be  for  the  purpose  of  mutual  protections^  Probably  these 
decisions  most  truly  exjjress  the  spirit  of  the  law;  for  it  is 
fundamental  that  no  one  who  j^joes  into  possession  of  land 
under  another,  or  acknowledj^inj;  the  title  of  another,  will  be 
heard  to  dispute  the  title  of  that  other  durinj^'  the  continuance 
of  the  relation.  This  doctrine  has  been  extended  and  held 
to  apply  fully  to  the  case  of  one  who  goes  into  possession  of 
land  under  a  contract  of  saleJ*^  Whatever  may  be  his  ])recise 
relation  to  the  property  and  to  the  owner — for  upon  this  point 
the  authorities  are  not  altogether  agreed — whether  a  tenant 
or  a  licensee,  it  is  generally  conceded  that  his  holding  is  not 
adverse,  and  cannot  become  so  until  by  some  unequivocal  act 
he  has  repudiated  the  relation  J" 

On  the  other  hand  we  find  apparently  w'ell-considered  cases 
which,  announce  that  the  vendee  is  under  no  obligation  to 
maintain  his  vendor's  title,  and  that  there  is  no  policy  of  law 
that  forbids  the  vendee  in  possession  to  buy  in  an  outstanding 
title  to  the  premises  and  assert  it  against  his  vendor;  other- 
wise it  is  said,  it  might  be  asserted  by  the  owner,  or  a  stranger 
might  buy  it,  and  it  would  be  lost  to  both.^o  jq  most  of  the 
cases  which  sustain  this  doctnne  there  are  peculiar  circum- 
stances which  have  shaped  the  policy  of  the  court,  but  the 
doctrine  itself  is  usually  announced  in  uuqualitied  terms.  In 
one  of  the  earliest  and  probably  most  authoritative  of  these 

77  Aston   V.   Robinson,    49    Miss.  In  this  case  the  purchaser  entered 

353;    Austin  v.   McKinney,    5    Lea  into  possession  under  an  agreement 

(Tenn.),  488;  Wilkinson  v.  Green,  that  the  purchase  money  was  not 

34  Mich.  221.  to     be     paid     unless     the     vendor 

7s  Greene  v.  Munson,  9  Vt.  37;  should,  within  three  years,  make 
Ripley  v.  Yale,  18  Vt.  220;  Ormond  him  a  warranty  deed  conveying  a 
V.  Martin,  37  Ala.  598;  Stamper  v.  perfect  title;  and  in  case  of  fail- 
Griffin,  20  Ga.  312;  Harris  v.  King,  ure  to  make  him  such  conveyance, 
16  Ark.  122;  Burnett  V.  Caldwell,  9  the  purchaser  was  to  remain  in 
"Wall.  (U.  S.)  290;  Austin  v.  Mc-  possession  of  the  premises  for  the 
Kinney,  5  Lea  (Tenn.),  488;  Wil-  period  of  three  years,  and  pay  a 
kinson  v.  Green,  34  Mich.  221.  reasonable   rent  for  the  same   for 

79  Harral  v.  Leverty,  50  Conn,  the  time  he  could  hold  peaceable 
46;  Burnett  v.  Caldwell,  9  Wall,  possession,  and  before  the  expira- 
(U.  S.)  290;  Harris  v.  King,  16  tion  of  the  three  years  he  acquired 
Ark.  122;  Kerns  v.  Dean,  77  Cal.  the  title  from  other  parties.  Held, 
555.  that  there  was  nothing  in  the  re- 

80  Green  v.  Dietrich,  114  111.  G3G.  lation    of   the    parties,    under   the 


23J:  THE  RELATION   OF   THE   PARTIES. 

cases^^  the  proijriety  of  applying  the  doctrines  which  exist 
between  lessor  and  lessee  to  vendor  and  vendee  is  doubted  and 
denied.  The  title  of  the  lessee,  it  is  argued,  is  in  fact  the  title 
of  the  lessor.  He  comes  in  by  virtue  of  it,  holds  by  virtue  of 
it,  and  rests  upon  it  to  maintain  and  justify  his  jjossession. 
Having,  therefore,  no  independent  right  in  himself,  and  it 
being  a  part  of  the  very  essence  of  the  contract  under  which 
he  claims  that  the  paramount  ownership  of  the  lessor  shall 
be  acknowledged  during  the  continuance  of  the  lease,  and  that 
possession  shall  be  surrendered  at  its  expiration,  he  is  not 
permitted  to  controvert  the  title  of  his  lessor  without  dis- 
paraging his  own,  and  cannot  set  up  title  in  another  without 
violating  tliat  contract  by  which  he  obtained  and  holds 
possession.  These  principles,  it  is  contended,  do  not  apply  to 
the  relation  of  vendor  and  vendee.  The  vendee  acquires  the 
property  for  himself,  and  his  faith  is  not  pledged,  like  that 
of  a  lessee,  to  maintain  the  title  of  his  vendor,  and  that  the 
property  becoming  by  the  sale  the  property  of  the  vendee,  he 
has  a  right  to  fortify  that  title  by  the  purchase  of  any  other 
which  may  protect  him  in  the  quiet  enjoyment  of  the  prem- 
ises.^2  Probably  no  very  serious  objection  can  be  made  to 
these  principles  in  the  case  of  an  executed  contract.  If  the 
vendor  has  made  a  conveyance  his  title  is  extinguished  in  law 
as  well  as  in  equity,  and  the  only  controversy  which  should 
arise  between  him  and  his  vendee  relates  to  the  payment  of 
the  purchase  money.  But  it  is  difficult  to  perceive  wherein  the 
possession  of  a  licensee  differs  from  that  of  a  lessee  so  far  as 
respects  his  duty  to  his  licensor. 

A  party  in  possession  of  land  under  a  contract  of  purchase 
is  estopped  from  denying  the  title  of  his  vendor  upon  the  prin- 
ciple that  he  shall  not  use  the  possession  acquired  from  an 
apparent  owner  to  the  injury  of  such  owner.  But  the  rule,  it 
is  to  be  observed,  does  not  apply  when  the  right  of  possession 
is  not  involved.  Thus,  while  a  tenant  cannot  deny  the  land- 
lord's title  in  an  action  to  recover  possession,  or  for  rent,  when 

original  contract  or  otherwise,  that  Wheat.     (U.    S.)    535.      This    case 

prevented     the     purchaser     from  seems    to    make   a   distinction    be- 

yielding  to  the  superior  title  and  tween  a  vendee  in  possession  and 

purchasing  the  same,  and  in  that  one  not  in  possession, 

way  secure  his  peace.  «2  See,  also,  Jackson  v.  Johnson, 

81  Blight's  Lessee  v.  Rochester,  7  5  Cow.  (N.  Y.)  74. 


THE   RELATION    OF    THE   PARTIES.  235 

the  lessee  lias  actually  enjoyed  the  preiiiises,  yet  be  may  do  so 
wlieu  he  has  not  been  in  the  actual  occupation;*^''  and  so,  in 
an  action  to  recover  the  amount  agreed  to  be  paid  on  a  con- 
tract of  ])urcliase,  the  vendee  may  defend  on  the  ground  that 
the  seller  has  no  title  and  can  give  uone.**^ 

An  important  distinction  also  seems  to  be  made  where  the 
oiiginal  entry  is  independent  of  the  vendor,  and  in  these  cases, 
while  the  general  rule  that  a  vendee  who  enters  into  posses- 
sion under  a  contract  of  purchase  cannot,  while  so  in  jjosses- 
sion,  dispute  the  vendor's  title,  is  recognized,  yet  it  is  held 
not  to  apply  where,  at  the  time  of  the  contract,  the  vendee 
is  already  in  possession  as  owner  claiming  title.  In  such  event, 
it  is  contended  that  the  case  lacks  the  essential  element  which 
creates  estoppel,  and  that,  as  the  vendee  does  not  acquire 
possession  by  virtue  of  any  consent  or  contractual  relation 
with  his  vendor  he  is  at  liberty  to  purchase  the  land  over 
again  as  often  as  claimants,  who  are  not  in  possession,  may 
appear,  and  thus  quiet  and  fortify  his  title  without  being 
estopped  from  disputing  the  title  of  such  subsequent  vendors, 
should  it  afterwards  become  necessary  for  him  to  do  so.^^ 

§  187.  Vendee's  possession  not  adverse.  Leaving  out  of  view 
the  main  question  discussed  in  tlie  last  paragraph,  it  would 
seem  certain  that  a  vendee  under  a  bond  or  contract  for  con- 
veyance, though  placed  in  possession  by  the  vendor,  does  not 
hold  adversely  to  the  latter.  Whether  the  contract  stipulates 
for  possession  by  the  vendee,  or  the  vendor  of  his  own  motion 
puts  him  ill  possession,  his  real  holding  is  that  of  licensee. 
The  relation  of  landlord  and  tenant  does  not  exist  between 
them;  for  the  characteristic  feature  of  that  relation  is  want- 
ing, the  vendee  paying  nothing  for  his  enjo}^uent  of  the 
property.  Such  a  case  comes  within  the  category  of  a  license, 
and  in  such  cases  the  vendee  cannot  dispute  the  title  of  the 
vendor  any  more  than  the  lessee  can  question  the  title  of  his 
lessor.**^    By  the  very  fact  of  taking  under  a  bond  or  contract 

83  Vernam  V.  Smith,  15  N.  Y.  328.  (U.   S.)    290;    Harris   v.   King.   16 

84  Burwell  v.  Jackson,  9  N.  Y.  Ark.  122;  Whiteside  v.  Jackson,  1 
535;  Stanley  v.  Stanley,  18  N.  Y.  Wend.  (N.  Y.)  422;  Hart  v.  Bost- 
508.  wick.    14    Fla.    162;    Browning    v. 

8s  Greene  v.  Couse,  127  N.  Y.  386;  Estes,  3  Tex.  462;  Stamper  v.  Grif- 
Bain  V.  Matteson.  54  N.  Y.  666.  fin,    20    Ga.    312;     Long    v.    Stock 

80  Burnett  v.   Caldwell,   9   Wall.    Yards  Co.  107  Mo.  298. 


23G  THE   RELATION    OF   THE   PARTIES. 

for  a  (Iti'd  to  be  thereafter  executed  by  the  vendor,  a  purchaser 
recognizes  the  titk'  of  his  vendor,  and  acknowledges  himself 
as  holding  in  subordination  and  not  in  antagonism  to  it.  No 
length  of  time  short  of  the  period  prescribed  for  the  limitation 
of  an  entry  into  lands,  or  at  least  for  the  foreclosure  of  a 
mortgage,  should  be  permitted  to  work  an  adverse  holding; 
for  if  it  appears  that  the  purchaser  entered  into  possession 
under  an  agreement  for  conveyance  and  in  amity  with  the 
holder  of  the  fee,  the  law  will  presume  a  continuance  of  that 
relation  until  the  contrary  appears.**'^  It  is  true  this  relation 
may  be  subsequently  changed,  and  the  purchaser  may  assume 
an  adverse  position;  but  when  this  is  claimed  it  must  be 
abundantly  proved — possession  alone  is  insufficient.'^^ 

The  full  payment  of  the  purchase  price,  however,  removes 
the  reason  for  the  rule;  and  hence,  where  the  consideration  is 
paid  and  the  owner  consents  that  the  purchaser  may  enter  and 
hold  the  land  as  his  own,  such  entry  and  possession  cannot  be 
deemed  subordinate  to  the  title  of  the  vendor,  but  is  adverse, 
and  a  practical  disseizin.^^  And  it  is  immaterial,  in  a  case  of 
this  kind,  whether  the  contract  be  in  writing  or  by  parol,  for 
the  vendee,  having  discharged  all  pecuniary  duty  to  the 
vendor,  becomes  clothed  with  an  equity  which  renders  his 
possession  antagonistic  both  to  the  vendor  and  to  strangers. 
If  such  possession  is  continued  for  the  statutory  period  it  will 
form  a  complete  bar  to  the  vendor's  right  of  entry  or  action;^*' 
unless  overcome  by  positive  evidence  showing  a  recognition 
of  the  vendor's  rights  or  a  subordination  to  hir  legal  estate,^^ 
Nor  will  such  possession  cease  to  be  adverse  simply  because 
of  the  vendee's  knowledge  of  defects  in  his  title,  nor  by  reason 
of  his  subsequent  demands  for  a  deed.^^  jf  j^^  asserts  a  pur- 
pose to  rely  upon  his  possession  and  claim  of  right,  it  is  not 
essential  that  he  should  believe  it  to  be  good.^^ 

87  Butler  V.  Douglass,  3  Fed.  Rep.  "«  Newsome  v.  Snow,  91  Ala. 
612 ;  and  see  Whiteside  v.  Jackson,    641. 

1    Wend.    (N.    Y.)    422;    Lewis    v.  oi  Potts  v.  Colman,   67  Ala.   221. 

Hawkins,    23    Wall.    (U.    S.)    119;  92  Newsome  v.  Snow,  91  Ala.  641. 

Adair  v.  Adair,  78  Mo.  634;  Chap-  o^  The   expression   "good    faith," 

man  v.  Chapman,  91  Va.  397.  must  not  be  understood  to  involve 

88  Kerns  v.  Dean,  77  Cal.  555.  an  inquiry  as  to  the  party's  belief 

89  Hart  V.  Bostwick,  14  Fla.  162 ;  in  the  strength  of  his  title,  or  to 
Drew  V.  Towle,  30  N.  H.  531;  Dean  mean  that  to  constitute  his  posses- 
v.  Brown,  23  Md.  11.  sion  adverse  he  must  claim  in  good 


THE   RELATION    OF   THE   PARTIES.  237 

There  would  .seem  (u  be  some  disseiil  from  tliis  (hjctriue  in 
some  of  the  stales,  wliere  it  is  held  that  iiotwilhstaiidiiij,'  that 
by  payment  of  the  entire  purehase  money  the  vendee  has 
a((piii-ed  the  full  e(piital)le  title,  he  yet  cannot  be  said  to  liold 
adversely  to  his  vendcjr.'"  In  such  case  the  vendee  is  still 
regarded  as  holding'  in  subordination  to  and  under  the  pro- 
tection of  the  vendor's  le^al  title.  Such  possession,  it  is  said, 
is  in  privity  with  and  subservient  to  the  legal  title,  which 
the  vendee  will  not  be  permitted  to  impeach  or  assail,  and 
no  length  of  time  will  be  sunicient  for  such  possession  to 
ripen  into  an  adverse  title.  The  question  becomes  important 
only  where  the  vendor  has  made  some  disposition  of  the  lands 
subsecpient  to  the  entry  by  the  vendee.  In  such  event,  under 
the  view  we  are  now  considering,  it  would  seem  that  unless 
the  vendee  has  in  some  way  dissevered  the  privity  between 
himself  and  the  vendor,  by  the  assertion  of  an  adverse  right, 
and  unless  such  assertion  has  been  brought  to  the  knowledge 
of  the  vendor  or  his  grantee,  no  claim  of  adverse  possession 
will  be  allowed.-'"''  These  views  are  of  doubtful  utility,  how- 
ever, for  the  rights  of  the  occupant  of  land,  where  the  posses- 
sion is  open  and  notorious,  must  still  be  respected  and  such 
possession  is  notice  to  the  world  of  the  right  or  claims  of  the 
vendee."*^ 

The  doctrine  has  been  announced  in  strong  terms  by  the 
federal  courts  that  while  the  vendor  before  deed  is  a  trustee 
of  the  vendee  for  the  conveyance  of  the  title,  and  the  vendee 
in  turn  a  trustee  for  the  payment  of  the  purchase  money,  yet 
that  the  vendee  is  in  no  case  a  trustee  of  the  vendor  as  to  the 
possession  of  the  property  sold;  that  the  vendee  claims  and 
holds  it  in  his  own  right,  for  his  own  benefit,  subject  to  no 
right  of  the  vendor  save  the  terms  which  the  contract  imposes; 
and  that  his  possession  is,  therefore,  adverse  as  to  th(^  })rop- 
erty,  but  frien<lly  as  to  the  performance  of  the  conditions  of 

faith  to  have  the  paramount  right,  this  respect.     Dothard  v.  Denson, 

before   the   bar   of   the   statute   is  72  Ala.  541. 

complete.     Good  faith  in  claiming  oi  See    Clarke    v.    McCIure,     10 

possession — the    real    intention    to  Graft.  (Va.)  305. 

hold  the  land  as  his  own,  distinct  "5  Chapman  v.  Chapman,  91  Va. 

from  and  hostile  to  the  title  and  397. 

possession    of   the   true   owner — is  oo  Pleasants  v.  Blodgett,  39  Neb. 

the  test  of  adverse  possession  in  741. 


238  THE   RELATION    OF   THE   PARTIES. 

I)iircliase.^'  This  result,  it  is  claimed,  follows  as  a  legal 
stMiueiioe  from  the  fact  that  the  vendee  is  the  equitable  owner; 
and  having  taken  possession  under  the  contract,  the  vendor 
is  in  the  situation  only  of  an  equitable  mortgagor.  Also,  that 
where  an  entry  is  by  purchase  and  the  purchaser  claims  the 
land  in  fee,  he  is  not  a  trustee;  his  title,  though  derivative 
from  and  consistent  with  the  original  title  of  the  vendor,  is 
nevertheless  a  present  claim  in  exclusion  of  and  adverse  to  it. 
There  is  nothing  objectionable  about  this  doctrine  unless  it 
is  perverted;  for,  whether  the  possession  of  the  vendee  be 
regarded  as  subservient  or  adverse,  the  rule  is  the  same  that 
equity  will  not  permit  a  vendor  to  assert  a  legal  right  of 
possession  unless  the  vendee  has  violated  the  contract,  and 
will  be  enjoined  from  so  asserting  title  if  the  vendee  per- 
forms it. 

It  will  thus  be  seen  that  the  subject  is  involved  in  much 
doubt  and  depends  for  its  construction  on  local  policy  when- 
ever presented.  Tliere  is  another  phase  of  same,  however,  in 
respect  to  which  the  authorities  are  mainly  agreed,  and  that 
is,  that,  as  to  all  persons,  except  the  vendor,  the  possession  of 
one  holding  under  an  executory  contract  may  be  deemed 
adverse.^^ 

§  188.  Vendee  may  attorn  to  stranger.  It  has  been  held 
that  while,  as  a  general  rule,  it  is  true  that  one  who  goes  into 
possession  of  land  under  a  contract  of  purchase  cannot  at 
la,w  dispute  the  title  of  his  vendor,  so  long  at  least  as  his 
possession  is  not  disturbed,  yet  if  the  vendor  himself  parts 
with  the  title,  or  if  the  land  is  sold  under  execution  against 
him,  the  vendee  may  in  good  faith  attorn  to  the  purchaser; 
and  in  an  action  of  ejectment  by  the  vendor  against  the  vendee, 
the  vendee  may,  even  though  the  purchase  money  is  still 
unpaid,  show  such  sale  and  attornment  as  a  defense  to  the 
action.i 

§  189.  Judgments  against  vendor.  A  judgment  regularly 
docketed  creates  a  lien  upon  the  legal  title  of  all  lands  stand- 
ing in  the  name  of  the  judgment  debtor;  and  notwithstanding 
he  may  have  contracted  to  sell  the  land  prior  to  the  rendition 

97  Boon  v.  Chiles,  10  Pet.  (U.S.)        "s  Ketchum   v.    Spurlock,   34   W. 
177;   Bright's  Lessee  v.  Rochebter,    Va.  597. 
4  Pet.  (U.  S.)  506.  i  Beall  v.  Davenport,  48  Ga.  165. 


THE   RELATION    OF   THE   PARTIES.  239 

of  the  judf.'^iucnt,  it  will,  in  (•()iit<'iiii)la(i()n  of  hiw,  still  be  a 
charge  upon  such  land  and  hind  llic  Icj^al  litlc  liut  cciuity 
limits  and  restricts  this  lien  to  Ihr  amount  of  the  unpaiil 
purcliasc  money  as  a^MinsI  a  jjarty  holding;  under  a  contract 
of  puichase;-  and  on  a  sale  umler  the  jud^qncnt  the  sherill's 
vendee  would  stand  in  precisely  the  same  position  as  Ihe 
original  vendor,  entitled  only  to  the  uni)aid  pufchase  money.'' 

Land  in  the  possession  of  a  vendee  under  a  vali<l  contract 
of  sale  cannot  be  taken  in  execution  and  sold  as  the  property 
of  the  vendor  under  judj^nHMit  liens  obtained  after  the  contract 
of  sale  was  made,'  and  sales  umh'r  execution  issiied  on  sudi 
judgments  will  be  enjoined  at  the  suit  of  the  purchaser/'  The 
possession  of  the  vendee  is  notice  of  his  ri<^hts,  and  all  persons 
are  bound,  at  thi'ir  i)eril,  to  recogni/e  and  respect  them;"  and 
if  the  vendee,  with  no  actual  knowledge  of  the  judgment,  con- 
tinues to  make  payments  to  the  vendor  he  will  be  entitled  to 
the  full  benefit  of  same.'^ 

§  190.  Judgments  against  vendee.  The  interest  of  a  vendee 
under  a  contract  of  purchase  is  only  an  equity-,  and  the  rule 
is  that  a  judgment  at  law  is  not  a  lien  upon  a  mere  equitable 
interest  in  land.  Before  the  purchase  money  has  been  fully 
paid  such  interest  is  not  subject  to  the  lien  of  a  judgment, 
nor  does  the  vendee  possess  any  such  legal  estate  in  the  land 
as  can  in  any  way  be  reached  b}-  process  of  law.^  But  where 
the  vendee  has  actually  paid  all  the  jjurchase  money,  so  that 
the  vendor  holds  the  property  as  a  mere  naked  trustee  for  the 
use  of  the  vendee,  this  fact,  together  with  possession,  particu- 
larly if  extended  over  a  period  of  years,  will,  it  seems,  vest 
such  a  title  in  him  as  may  be  sold  on  execution,  even  though 
he  does  not  possess  seizin  at  law.^ 

2  Moyer  v.  Hinman,  17  Barb.  (N.  Lefferson  v.  Dallas,  10  Ohio  St.  68. 

Y.)     139;     Parks    v.    Jackson,    11  7  Moyer  v.  Hinman,  13  N.  Y.  180; 

Wend.   (N.  Y.)  442;  Filley  v.  Dun-  When  v.  Fall,  55  Neb.  547. 

can,  1  Neb.  334;  Stewart  v.  Coder,  s  Trimm  v.  Marsh,  54  N.  Y.  612; 

11  Pa.  St.  90.  Jackson  v.  Parker,  9  Cow.  (N.  Y.) 

:*  Kinports    v.    Boynton,    120   Pa.  83;   Kellogg  v.  Wood,  4  Paige   (N. 

St.  306.  Y.),  619. 

4Adicks  V.  Lowry,  12  Rep.  764;  "Talbot  v.  Chamberlin,  3  Paige 

When  V.  Fall,  55  Neb.  547.  (N.   Y.),    220;    Purdy  v.    Doyle,    1 

r' Jackson  V.  Snell.  34  Ind.  241.  Paige    (N.    Y.).    558.      Where    the 

«  Moyer  v.  Hinman,  13  N.  Y.  180;  owner  of  land  has  entered  into  a 

When  V.  Fall,  55  Neb.  547;  but  see  bond   to  convey   it  on   being  paid 


240  THE   RELATION    OF   THE   PARTIES. 

§  191.  Vendor's  possession  after  sale.  A  vendor  who  re- 
mains in  possession  after  llie  contract  and  before  conveyance, 
while  in  law  the  owner  and  as  such  entitled  to  all  the  rights 
that  follow  or  attach  to  legal  ownership,  is  nevertheless  in 
equity  but  a  trustee  for  the  purchaser.  He  may  not  treat  the 
estate  as  his  own,  and  if  he  wilfully  damages  or  injures  it  he 
will  be  liable  to  the  purchaser.i*'  Indeed,  some  of  the  authori- 
ties say  that  he  is  liable  if  he  does  not  take  reasonable  care;^^ 
but  this  doctrine,  which  is  of  English  origin,  does  not  seem  to 
have  received  any  general  recognition  in  this  country,  while 
late  authorities  have  jjronounced  a  contrary  rule.^^  The 
vendor  w^ould  have  no  right  to  remove  trees,  shrubs  or  other 
natural  increment  of  the  land;  and  should  he  do  so  the  vendee 
might,  it  seems,  have  recourse  against  him  as  for  trespass. 
This  would  certainly  be  the  case  if  the  vendee  had  been  let 
into  possession;  and  in  principle  there  should  be  no  difference 
in  the  application  of  the  rule.^^ 

§  192.  Vendor's  possession  after  conveyance.  A  grantor 
remaining  in  possession  of  the  property,  after  a  conveyance 
with  general  warranty,  would  seem  to  be  effectually  estopped 
by  the  covenants  of  his  deed  from  claiming  any  rights  or 
interests  in  the  land  inimical  to  his  grantee;  and  such  has 
been  held  to  be  the  rule.^^  A  grantor  who  conveys  by  quit- 
claim only,  by  remaining  in  possession  of  the  property  and 
asserting  a  hostile  claim,  has  been  permitted  to  acquire  an 
adverse  title  against  his  grantee  by  virtue  of  the  statute  of 
limitations;^^  while  some  courts  have  even  held  that  a  grantor 
with  warranty  may,  subsequent  to  the  delivery  of  his  grant, 
originate  an  adverse  possession,  and  is  not  estopped  from 
asserting  the  same  by  his  covenant  of  warranty.^^ 

the   whole   amount  of  the   agreed  lo  Smith  v.  Price,  42  111.  399. 

purchase  money,  and  a  part  of  it  n  See  Lysaght  v.  Edwards,  2  Ch. 

has  been  paid  by  the  obligee,  who  D.    (Eng.)    499. 

enters    into    possession,    it    seems  12  See  Hellreigel  v.  Manning,  97 

that  his  creditors  may  avail  them-  N.  Y.  56. 

selves  of  chancery  jurisdiction  to  is  See  Smith  v.  Price,  42  111.  399; 

obtain  a  conveyance  of  the  prop-  Stow  v.  Russell,  36  111.  23. 

erty  to  themselves,  or  a  sale  of  it  i*  Van  Keuren  v.  R.  R.  Co.  38  N. 

for  their  benefit,  upon  offering  to  J.  L.  165;   McCormick  v.  Herndon, 

complete  the  payment  of  the  agreed  67  Wis.  650. 

purchase  money.    Ayer  v.  Bartlett,  !•''>  Borland  v.  Magilton, 47  Cal. 485. 

6  Pick.  (Mass.)  71,  76.  le  Sherman  v,  Kane,  86  N.  Y.  57. 


THE  RELATION   OF  THE   PARTIES.  241 

But  to  enable  a  j^iaiilor  with  wanaiity  lo  hold  adversely 
to  his  grantee,  sucli  holding  must  be  established  by  clear  and 
undoubted  tesliruony  sliowiug  a  change  in  the  relations  of  the 
parlies  toward  the  land.  The  mere  fact  of  the  retention  of 
possession  is  in  ilsell'  insullicient ;  for  the  presumption  of  law 
in  such  case  is  that  he  i-emains  in  possession  by  peiniission, 
and  that  his  liolding  is  in  amity  with  and  in  subservience  to 
the  tith'  he  has  given. '^  Indeed,  a  gi'antor  will  ordinarily  be 
estopped  by  his  own  deed  fi'om  claiming  that  his  jiossession 
is  adverse  to  his  own  grantee.''^ 

Where  after  delivery  of  deed  the  grantor  remains  in 
possession,  or  on  demand  refuses  to  surrender  tlie  same  to 
his  grantee,  he  assumes  the  attitude  of  a  trespasser  and  may 
be  dispossessed  by  action.  He  may  also  be  treated  as  a  tenant 
at  will  and  liable  to  his  grantee^  for  rent;  and  tliougli  he 
afterwards  abandons  the  premises  which  the  grantee  proceeds 
to  occupy,  the  grantee  may  recover  for  the  use  of  the  land 
during  his  exclusion,  and  parol  evidence  will  not  be  admitted 
to  show'  a  reservation  of  possessory  rights  in  the  grantor.^'* 

§  193.  Destruction  of  property — Proceeds  of  insurance. 
Among  the  common  questions  growing  out  of  the  relation  of 
vendor  and  vendee  is  that  which  arises  where,  subsequent  to 
the  execution  and  prior  to  the  consummation  of  the  contract 
of  sale,  the  improvements  u])on  the  land  are  destroyed  by  fire 
or  other  casualty.  By  the  well-known  rules  of  equity  the 
property  is  regarded  as  belonging  to  the  vendee,  the  vendor 
retaining  the  legal  title  simply  as  his  trustee  and  as  a  security 
for  the  unpaid  purchase  money.  Ordinarily,  if  the  property 
has  been  insured  by  the  vendor,  the  loss,  under  the  strict  rules 
of  law,  would  be  payable  to  him,  as  he  is  still  regarded  as  the 
owner  of  the  property.  Yet  as  between  himself  and  the  vendee 
the  property  is  not  his,  but  that  of  the  vendee;  and  the  ques- 
tion which  under  these  facts  arises  is:  Can  he  appropriate 
to  himself  the  money  which  the  insurance  company  has 
become  liable  to  pay  on  account  of  the  loss?  If  it  is  conceded, 
as  it  must  be,  that  tlie  vendor  held  the  property  only  in  trust, 

1"  Jones   V.    Miller,    3    Fed.    Rep.  i^  McCormick     v.     Herndon,     67 

384;  Horbach  v.  Miller,  4  Neb.  31;  Wis.  650. 

Schwallback  v.  R.  R.  Co.,  69  Wis.  lo  Jones  v.  Timmons,  21  Obio  St. 

292 ;  and  see  Abbott  v.  Gregory,  39  596. 
Mich.  68. 
16 


243  THE   RELATION   OF   THE   PARTIES. 

then  it  would  naturally  follow  that  the  right  which  accrued 
in  consequence  of  its  destruction  took  its  place,  was  held  in 
the  same  way,  and  was  liable  to  be  enforced  in  a  court  of 
equity.  This  would  seem  to,  be  the  plain  result  of  the  princi- 
ples governing  the  relations  between  the  parties  established 
by  an  ordinary  contract  of  sale.^o 

So  far  as  insurable  interests  are  concerned,  both  parties 
possess  them.-^  Either  party  may  therefore  effect  insurance, 
but  to  whom  the  money  shall  be  paid  in  case  of  loss  seems  to 
be  a  question  that  has  been  the  subject  of  much  dispute  and 
considerable  diversity  of  opinion.  A  learned  writer  says: 
''Where  the  vendor,  in  a  contract  for  the  sale  of  a  house  which 
is  destroyed  by  fire  before  the  completion  of  the  purchase, 
receives  payment  for  the  loss  under  a  policy  which  existed 
at  the  date  of  the  contract,  no  reference  being  made  in  the 
contract  to  the  insurance,  the  vendee  has  no  claim  upon  the 
f unds."22  And  this  doctrine  seems  to  have  received  the  gen- 
eral assent  of  the  English  courts.  There  is  manifest  injustice 
in  this,  for  it  practically  gives  the  vendor  his  purchase  money 
twice  over — in  the  first  instance  from  the  purchaser,  and  again 
from  the  insurance  company;  and  equity,  while  it  enforces 
payment  by  the  purchaser,  who  may  get  practically  nothing, 
will  not  relieve  him  from  the  legal  consequences  of  the  con- 
tract and  of  subsequent  events.^^ 

A  more  reasonable  and  just  rule  seems  to  have  been  adopted 
by  the  courts  of  the  United  States,  and  in  many  of  the  states 
it  is  the  settled  doctrine  that  money  accruing  on  a  policy  of 
insurance,  where  the  loss  has  occurred  subsequent  to  the 
execution  of  the  contract,  will  in  equity  inure  to  the  benefit 
of  the  vendee^^ — the  vendor  still  retaining  his  character  of 
trustee,  while  the  insurance  money  in  his  hands  represents 
the  property  that  has  been  destroyed.^^ 

20  Reed  V.  Lukens,  44  Pa.  St.  200;  ^tna  Ins.  Co.  v.  Tyler,  16  Wend. 
Ins.   Co.   v.   Updegraff,   21   Pa.   St.     (N.  Y.)  385. 

513.  22  May  on  Ins.  (2d  ed.)  §  450. 

21  Hough  V.  Ins.  Co.,  29  Conn.  10;  23  But  see  Wells  v.  Calnan,  107 
Perry  Co.  Ins.  Co.  v.  Stewart,  19    Mass.  514. 

Pa.  St.  45;  Imperial  Ins.  Co.  v.  24  Reed  v.  Lukens,  44  Pa.  St.  200; 
Dunham,  117  Pa.  St.  460;  Brewer  Hill  v.  Cumberland,  etc.,  Co.,  59  Pa. 
V.   Herbert,  30  Md.  301;    Franklin    St.  474. 

Ins.  Co.  V.  Martin,  41  N.  J.  L.  568;        2r,  ins.  Co.  v.  Updegraff,  21  Pa.  St 

513. 


THE  RELATION   OF   THE   PARTIES.  243 

If  the  vendee  lias  procured  insurance  for  his  own  benefit, 
and  without  any  agreement  to  insure  for  the  bcucjit  of  the 
vendor,  it  seems  the  hitter  can  chiim  no  bcndit  from  the 
insurance.-''  In  support  of  this  it  is  contended  tliat  a  c(jntract 
of  insurance  against  fire,  as  general  ruh',  is  a  mere  personal 
contract  between  the  assured  and  the  underwriter  to  indem- 
nify the  former  against  llie  loss  he  may  sustain,  and  as  an 
illustration  is  cited  the  ramiliar  case  of  mortgagor  and  mort- 
gagee. In  case  a  mortgagor  elfects  an  insurance  upon  the 
mortgaged  premises  the  mortgagee  can  claim  no  benefit  from 
it  unless  he  can  base  his  claim  upon  some  agreement;  and  so, 
in  the  case  of  vendor  and  vendee,  it  is  incumbent  on  the  vendor 
to  show  that  the  insurance  was  effected  for  his  benefit  if  he 
would  avail  himself  of  the  proceeds.  Where  this  is  satisfac- 
torily shown  the  right  of  the  vendor  is  unquestionable;  for 
where  the  assured  has  agreed  to  insure  for  the  protection 
and  indemnity  of  another  person  having  an  interest  in  the 
subject  of  the  insurance,  then  such  third  person  has  an  equit- 
able lien,  in  case  of  loss,  upon  the  money  due  upon  the  policy 
to  the  extent  of  such  interest.-' 

§  194.  Continued — Rights  of  option  holder.  Ordinarily  the 
holder  of  a  mere  option  of  purchase  is  not  regarded  in  the 
same  light  as  a  vendee  under  a  bilateral  contract,  nor  will 
the  same  rules  apply  to  him  that  would  operate  in  such  latter 
case;  but  where  an  option  of  purchase  is  regarded  as  a  sub- 
stantial interest  in  land,  as  is  the  case  in  some  states,  if  an 
insurance  against  loss  by  fire  exists,  or  is  subsequently 
effected,  and  a  loss  occurs,  after  which  the  option  is  exercised, 
it  seems  the  purchaser  will  be  entitled  to  the  moneys  due 
upon  such  insurance.28 

§  195.  Continued — Effect  of  proviso  respenting  insurer's 
interest.  A  familiar  provision  in  most  |)olicies  of  insurance 
is  that  if  the  interest  of  the  assured  in  the  property  be  other 
than  the  entire,  unconditional  and  sole  ownership  the  policy 
shall  be  void.  This  clause  is  important  where  a  sale  still 
remains  executory.     The  (juestions  which  have  arisen  under 

20  Cromwell  v.  Ins.  Co.,  44  N.  Y.  Pick.   (Mass.)   204;  Ellis  v.  Krent- 

42.  singer,  27  Mo.  311. 

2T  Cromwell  v.  Ins.  Co..  44  N.  Y.  28  Peoples  Ry.  Co.  v.  Spencer,  156 

42;  Providence  Bank  v.  Benson,  24  Pa.  St.  85. 


244  THE    RELATION    OF    THE    PARTIES. 

this  chiiiso  seem  nuiiuly  to  relate  to  the  interest  of  the  vendee 
and  to  insurances  which  he  has  attempted  to  make  for  the 
protection  of  such  interest.  The  general  rule  would  seem  to 
be  that  a  vendee  has  an  insurable  interest  as  well  as  the 
vendor  and  where  a  vendee  is  in  possession  and  exercising 
acts  of  ownership  under  an  executory  contract  of  purchase, 
notwithstanding  a  portion  of  the  purchase  money  is  still 
unpaid,  he  is  yet  to  be  regarded  as  the  ''unconditional  and 
sole  owner,"  and  as  such  entitled  to  recover  for  the  loss  of  an 
insured  building  situated  upon  the  land.^o 

The  reasoning  by  which  the  foregoing  rule  is  reached  pro- 
ceeds upon  the  lines  heretofore  indicated,  that  is,  that  the 
vendee  is  the  real  owner  and  the  vendor  but  a  trustee  of  the 
title,  and  that  where  one  person  binds  himself  unconditionally 
to  pay  a  certain  price  for  a  piece  of  land  and  takes  possession 
thereof,  and  the  other  binds  himself  to  make  a  deed  upon  the 
pajTiients  being  made,  if  nothing  remains  to  be  done  but  for 
the  party  taking  possession  to  make  the  pa^^ments  and  for 
the  other  party  to  make  the  deed,  then  such  contract  consti- 
tutes a  sale  of  the  land  within  the  meaning  of  the  policy .^^ 

§  196.  Effect  upon  insurance  of  proviso  against  sales.  There 
is  now  usually  inserted  in  policies  of  insurance  a  special 
provision  which  recites  that  the  policy  shall  be  void  if  the 
property  insured  is  sold  and  conveyed  without  the  written 
permission  of  the  insurer.  Inasmuch  as  nearly  every  sale  of 
improved  realty  contemplates  a  transfer  of  the  insurance 
thereon  as  well,  this  provision  becomes  important  in  this 
connection.  The  object  of  the  proviso  seems  to  be  to  protect 
the  insurer  from  a  continuing  obligation  to  the  assured,  if 
the  title  and  beneficial  interest  should  pass  to  others  whom 
he  might  not  be  equally  willing  to  trust;  therefore,  its  effect 
is  to  annul  the  contract  where  a  sale  of  the  proprietary  interest 
is  made  to  a  third  person.^i 

It  would  seem,  however,  that  while  a  transfer  of  the  prop- 
erty by  the  assured  to  a  third  person,  unless  assented  to  by 

29  ^tna    Ins.    Co.    v.    Tyler,    16  ^o  Davidson  v.  Hawkeye  Ins.  Co., 

Wend.    (N.   Y.)    385;    Johannes   v.  71  Iowa  532. 

Standard  Fire  Office,  70  Wis.  196;  3i  Hoffman  v.  Ins.  Co.,  32  N.  Y. 

Loventhal   v.   Home   Ins.   Co.,   112  405. 
Ala.  108;    Dupreau    v.    Hibernian 
Ins.  Co.,  76  Mich.  615. 


THE    RELATION    OF    THE    PARTIES.  24."> 

the  insurer,  will  have  the  effect  to  vitiate  the  policy,  a  sale 
bj  one  joint  owner  to  another  of  his  interest  in  the  property 
does  not  come  within  the  operation  of  the  rule,  and  is  not  a 
cause  of  forfeiture  within  the  intent  and  import  of  the  pro- 
vision against  sales.-'-  The  desij:jn  of  the  provision  is  not  to 
interdict  all  sales,  but  only  sales  of  propnetary  interests  by 
parties  insured  to  parties  not  insured.  A  sale  between  joint 
owners  makes  no  substantial  change  material  to  the  risk,  and 
none  within  the  intent  of  a  simple  proviso  against  alienation.''^ 

§  197.  Continued — Assignment  of  policy.  The  rule  is  well 
settled  that  a  policy  of  lire  iiisuiancc  is  a  personal  contract 
with  the  assured;  that  it  does  not  run  with  the  property 
insured,  and  will  not  pass  to  a  p\irchaser  of  such  property 
unless  assigned  with  the  assent  of  the  insurer,''*  and  further, 
that  unless  so  assigned  it  expires  with  the  transfer  of  the 
estate  of  the  assured.^^ 

The  assignment  of  the  insurance  is,  however,  an  incident  of 
nearly  every  transfer  of  improved  real  property,  and  when 
the  consent  of  the  company  has  been  given  the  jiractical  effect 
is  to  constitute  an  independent  contract  with  the  purchaser 
and  assignee,  the  same  as  if  the  policy  had  been  reissued  to 
him  upon  the  temis  therein  expressed;  in  other  words  it  is 
substantially  the  same  as  if  a  new  policy  had  been  issued 
embracing  the  terms  of  the  old.^^ 

§  198.  Effect  of  condemnation  proceedings.  Whore  land 
is  condemned  after  sale,  such  proceedings  in  effect  operate  as 
a  sale  of  the  condemned  portion  by  the  vendee — a  forced  sale, 
it  is  true,  but  practically  the  same  in  general  effect,  as  though 
made  voluntarily  and  through  the  negotiation  of  the  vendee. 
The  damages  in  such  case  accrue  to  the  vendee  as  the  real 
owner  of  the  property.  The  legal  title  held  by  the  vendor  is 
regarded  only  as  a  security  for  the  payment  of  the  purchase 
money;  and  the  relation  of  the  parties,  so  far  as  respects  the 
right  to  claim  and  hold  such  damages,  is  not  substantially 

32  Tillou  V.  Kingston  Ins.  Co.,  7  Co.   v.   Gery,   112   Ind.   535;    Cum- 
Barb.  (N.  Y.)  570;  Buffalo  Engine  mings  v.  Ins.  Co.,  55  N.  H.  457. 
Works  V.  Ins.  Co.,  17  N.  Y.  412.  35  Continental  Ins.  Co.  v.  Munns, 

33  Hoffman  v.  Ins.  Co.,  32  N.  Y.  120  Ind.  30. 

405.  30  Continental  Ins.  Co.  v.  Munns, 

34ymna  Ins.  Co.  v.  Tyler,  16  120  Ind.  30;  Steen  v.  Ins.  Co..  89 
Wend.  (N.  Y.)  385;  Nordyke,  etc.,    N.  Y.  315. 


2A:6  THE  RELATION  OF  THE  PARTIES. 

dillerent  from  what  it  would  have  been  if  the  vendor  had  given 
a  deed  and  taken  back  a  mortgage,  except  that  where  only  a 
contract  is  given  the  vendor  can  insert  terms  reserving  to 
himself  a  more  efiicient  remedy  in  case  of  default  in  payment. 
But  while  the  damages  belong  in  equity  to  the  purchaser,- yet 
when  paid  in  money,  if  the  security  of  the  vendor  would  be 
impaired  by  the  purchaser's  receipt  of  the  same,  he  may  insist 
that  they  shall  not  be  paid  until  his  security  has  been  increased 
to  that  extent;  and  the  purchaser  will  have  a  corresponding 
right  to  security  if  about  to  be  placed  in  jeopardy  by  the 
payment  of  the  damages  to  the  vendor.^^ 

§  199.  Effect  of  mechanics'  liens.  The  adjustment  of  the 
rights  of  the  parties  and  their  relations,  respectively,  with 
respect  to  liens  incurred  after  sale  and  before  conveyance 
have  been  productive  of  considerable  diversity  of  opinion; 
but  in  the  main  the  rule  may  be  stated,  with  regard  to 
mechanics'  liens,  as  follows:  >Yhere  the  owner  of  land  gives 
a  contract  for  a  deed  to  the  purchaser,  who  procures  a  building 
to  be  erected  on  the  premises,  the  lien  of  the  mechanic  attaches 
only  upon  the  purchaser's  interest,  and  the  vendor  cannot  be 
required  to  part  with  his  title  until  he  first  receives  full  pay- 
ment of  the  purchase  money.^^  But  the  vendor  must  do  noth- 
ing to  authorize  the  vendee  to  improve  the  premises;  and  if 
improvements  are  made,  they  must,  to  come  within  the  fore- 
going rule,  be  made  by  the  vendee  on  his  responsibility.  In 
such  event  the  mechanic's  lien  will  be  confined  exclusively  to 
the  purchaser's  interest. 

But  where  the  vendor  by  his  contract  of  sale  expressly 
authorizes  the  vendee  to  make  erections  and  improvements  on 
the  premises,  and  particularly  if  he  agrees  to  advance  money 
to  aid  in  such  improvements,  and,  before  any  termination  of 
the  contract  and  notice  thereof,  a  mechanic  perfonns  labor  or 
furnishes  materials  in  the  erection  of  buildings  on  the  land, 
the  latter  will  not  be  required  to  look  alone  to  the  title  held 
by  the  vendee,  but  ma}'  enforce  his  lien  against  the  legal  as 
well  as  the  equitable  title.^^ 

37  Stevenson  v.  Loehr,  57  111.  509.    Hayes  v.  Fessenden,  106  Mass.  228; 

38  Hickox  V.   Greenwood,   94    111.    Walker  v.  Burt,  57  Ga.  20. 

266;  Johnson  v.  Pike,  35  Me.  291;        ■■';.  Henderson  v.  Connelly,  123  HI. 

98;  Hilton  v.  Merrill,  106  Mass.  528. 


CHArTER    VII. 


AGENTS    AND    BROKERS. 


§200. 

General  principles. 

§223. 

When  principal  chargeable 

201. 

Wlio  may  act  as  agent. 

with  agent's  acts. 

202. 

Continued  —  Trustee        as 

224. 

Fraud  of  agent. 

agent. 

225. 

Notice  to  agent  binds  prin- 

203. 

Appointment  and  autliority. 

cipal. 

204. 

Proof  of  authority. 

226. 

Agent  dealing  for  his  own 

205. 

Autliority  resting  in  parol. 

benefit. 

206. 

Authority  in  writing. 

227. 

Continued — Effect  of  laches 

207. 

Telegram  as  authority. 

of  vendor. 

208. 

General  and  special  agents. 

228. 

The  right  to  commission. 

209. 

Implied  powers. 

229. 

Continued  —  Agent     must 

210. 

Agent  must  pursue  his  au- 

produce actual  purchaser. 

thority. 

230. 

Continued  —  Sale   must   re- 

211. 

Agent's  liability  for  breach 

sult  from  broker's  efforts. 

of  instructions. 

231. 

Continued  —  Where    more 

212. 

Continued  —  For     miscon- 

than  one   broker    is   em- 

duct. 

ployed. 

213. 

Not    liable    for    errors    of 

232. 

Continued — Sale  by  owner 

judgment. 

without     broker's     inter- 

214. 

Ratification     of     unauthor- 

ference. 

ized  agency. 

233. 

Continued — Failure  to  close 

215. 

Effect  of  ratification  as  re- 

within time  stipulated. 

spects  purchaser. 

234. 

Continued  —  Revocation    of 

216. 

Effect  of  ratification  as  re- 

broker's authority. 

spects  principal. 

235. 

Continued  —  Sale    by    unli- 

217. 

Agent's  signature. 

censed  broker. 

218. 

Revocation  of  authority. 

236. 

Continued — Agent    as    pur- 

219. 

Agency  coupled  with  inter- 

chaser. 

est. 

237. 

Sale  by  agent  above  stipu- 

220. 

Agent's     authority     termi- 

lated price. 

nates     with     principal's 

238. 

Double  agency. 

death. 

239. 

The  measure  of  compensa- 

221. 

Undisclosed  principal. 

tion. 

222. 

When    agent   becomes   per- 

240. 

Sub-agents  —  Delegation   of 

sonally  liable. 

authority. 

§  200.  General  principles.  It  is  not  an  exaggeration  to  say 
that  fully  one-half  of  all  the  voluntary  transfers  of  real  prop- 
erty that  are  daily  made  in  the  Ignited  States  are  effected 
through  the  intervention  of  agents  and  brokers.  In  every 
city  of  any  size  they  form  a  distinct  class  of  the  business  com- 

247 


248  AGENTS    AND    BROKERS. 

munity,  while  every  country  hamlet  can  show  at  least  one  or 
two  individuals  who,  in  addition  to  their  other  avocations, 
pursue  this  branch  of  trade  as  one  of  their  methods  of  liveli- 
hood. It  is  not  strange,  therefore,  that  they  have  long  since 
been  recognized  by  the  courts,  nor  that  a  vast  body  of  case 
law  should  have  been  built  up  in  the  detennination  of  the 
various  questions  growing  out  of  their  peculiar  calling. 

The  relation  of  agency  is  created  where  one  party  is  author- 
ized to  do  certain  acts  for,  or  in  respect  to  the  rights  or 
property  of,  another — the  former  being  called  the  agent,  the 
latter  the  principal.  The  acts  to  be  performed  may  be 
executed  in  the  name  of  the  principal  or  in  the  name  of  the 
agent  for  the  principal,  while  the  authority  may  be  conferred 
antecedently  or  inferred  from  subsequent  ratification  of  the 
agent's  acts.  In  its  broadest  sense  the  term  agent  is  made  to 
cover  almost  every  species  of  fiduciary;  but  in  its  strict  appli- 
cation to  sales  of  real  property  it  is  generally  held  to  mean 
only  those  who  assume  to  act  in  the  place  of  another  under 
express  or  implied  powers,  and  is  distinguished  from  broker, 
or  other  fiduciaries  who  simply  act  as  middle-men  or  nego- 
tiators. In  many  transactions  the  agent  acts  only  in  the  latter 
capacity,  however,  and  in  such  event  he  is  properly  a  broker 
and  not  an  agent. 

While  the  powers  and  authority  of  an  agent  enable  him  to 
act  for  and  in  the  place  of  his  principal,  the  authority  of  the 
broker  employed  to  sell  real  property  is  usually  limited  to  the 
power  of  finding  a  purchaser  satisfactory  to  the  principal; 
and  such  will  be  implied  from  his  vocation,  although  if  the 
language  of  the  principal  used  in  making  the  employment 
clearly  shows  that  he  intended  to  give  him  a  power  more 
extensive  than  that  of  a  mere  broker,  and  to  clothe  him  with 
authority  to  exercise  the  powers  of  an  agent,  and  to  bind  the 
principal  by  a  written  memorandum  of  sale,  the  courts  will 
enforce  a  written  contract  made  by  him  in  pursuance  of  the 
agency.i 

§201.  Who  may  act  as  agent.  Every  person  possessing 
sufficient  capacity  to  act  for  himself  may  properly  represent 

1  Rutenberg  v.  Main,  47  Cal.  213.  or  "go-between."  Henderson  v. 
Strictly  speaking,  a  broker  is  a  State,  50  Ind.  234;  and  see  Braun  v. 
mere    "negotiator,"    "middle-man"    Chicago,  110  111.  186. 


AGENTS    AND    BROKERS.  249 

another  as  an  agent ;'^  and  even  where  civil  disabilities  may 
intervene  to  prevent  or  di.s(iiialify  a  person  from  contractinj^ 
in  his  own  name  he  may  nevertheless  act  for  one  to  whom 
such  conditions  do  not  apply;'  and,  as  a  rule,  any  one,  except 
a  lunatic,  imbecile  or  child  of  tender  years,  may  be  an  aK<^*nt 
for  another.^  Thus,  a  married  woman,'*  even  though  incapaci- 
tated to  contract  for  herself,  or  a  minor,"  if  of  sullicient  under- 
standing, may,  if  properly  authorized,  make  valid  and  binding 
contracts  for  another;  but  an  insane  person,  having  neither 
the  understanding  to  receive  instructions  nor  the  judgment 
necessary  for  the  i)roper  exercise  of  discretion,  is  for  that 
reason  incapable  of  assuming  the  relation,  and  the  same  is 
true  of  all  persons  similarly  situated.  It  is  essential,  however, 
that  the  agent  be  a  third  person,  for  neither  of  the  contracting 
parties  can  act  as  the  agent  of  the  other. 

§  202.  Continued — Trustee  as  agent.  The  rule  is  funda- 
mental that  a  trustee  is,  by  the  general  principles  of  law, 
precluded  from  purchasing  the  trust  property  for  his  own 
benefit,  or  of  exercising  any  acts  in  relation  thereto  incom- 
patible with  his  duty  as  such  trustee.  He  cannot  take  upon 
himself  any  adverse  employment  or  have  any  antagonistic 
interest  that  would  be  liable  to  expose  his  trust  to  abuse  or 
fraud.  Hence,  it  has  been  held  that,  as  he  cannot  buy  on  his 
own  account,  it  follows  that  he  cannot  be  permitted  to  buy 
as  the  agent  of  a  third  person.^ 

§  203.  Appointment  and  authority.  To  effectuate  a  binding 
sale  or  purchase  of  real  property,  the  memorandum  which  the 
law  requires  as  an  evidence  of  the  transaction  must  be  signed 
by  the  party  to  be  held  or  by  his  agent  thereunto  lawfully 

2  Lea  V.  Bringier,  19  La.  Ann.  law,  may  claim  any  interest  of 
197.  such  disabled   persons  after  their 

3  Lang  V.  Waters,   46   Ala.    264;  death.    1  Evans' Agency,  16. 
Stall  V.  Meek,  70  Pa.  St.  181.     The  ■»  Lyon  v.  Kent,  45  Ala.  656. 
reason  for  this  distinction  between  r,  Singleton  v.   Mann,   3   Mo.   464 
principals  and  agents  is,  that  the  (orig.   pg.) ;    Butler   v.    Price,   110 
execution  of  a  naked  authority  can  Mass.  97;  Pullman  v.  State,  78  Ala. 
be  attended   with    no    manner    of  31. 

prejudice  to  the  persons  under  such  c  Talbot  v.  Bowen,  1  A.  K.  Marsh, 

incapacities   or  disabilities  as  are  (Ky.)  436. 

involved     in     coverture,     infancy,  ~  Building  Ass'n  v.  Caldwell,  25 

etc.,  or  to  any  other  person  who,  by  Md.  420. 


250  AGENTS    AND    BROKERS. 

autlioiizod.  In  some  states,  as  a  safe-guard  against  fraud  and 
tlie  unauthorized  acts  of  jjersons  claiming  to  represent  the 
principals  to  the  agreement,  the  authority  by  which  the  agent 
assumes  to  act  must  itself  be  evidenced  by  a  writing;  but  in 
many — perhaps  a  majority — of  the  states  this  additional  pre- 
caution is  not  required. 

Not  infi'CMiuently,  however,  the  question  of  authority  sinks 
into  minor  importance  in  view  of  other  facts  and  circumstances 
surrounding  the  transaction,  and  notwithstanding  that  an 
appointment  in  writing  is  by  statute  an  essential  requisite  to 
enable  an  agent  to  make  a  valid  and  binding  contract,  its  legal 
effect  may  be  obviated  by  the  attitude  of  the  parties.  Thus, 
the  question  of  authority  becomes  immaterial  where  the  sale 
is  made  in  the  presence  of  the  principals,  the  money  paid  at 
the  same  time,  and  the  purchaser  let  into  possession.  In  such 
case,  if  a  contract  of  sale  is  subsequently  made  in  the  name 
of  the  agent,  the  vendor  would  be  estopped  from  denying  the 
validity  of  the  sale  simply  because  such  agent  was  not  author- 
ized in  writing  to  execute  same.^ 

Ordinarily,  if  one  acts  for  and  in  behalf  of  another  it  is 
immaterial  to  the  question  of  agency,  so  far  as  third  persons 
are  concerned,  whether  he  acts  by  the  direction  and  request 
of  his  principal  or  by  his  permission  merely,  for  he  is  equally 
an  agent  in  both  cases;  yet  in  the  construction  of  powers 
exercised  by  an  agent  in  the  purchase  or  sale  of  land,  a  stricter 
interpretation  is  usually  had  than  prevails  in  other  affairs  of 
business  or  in  transactions  wholly  related  to  chattels.  Where 
a  writing  is  required  the  authority  to  sell  must  be  clear  and 
explicit,  and  of  such  a  character  that  a  fair  and  candid  person 
can  see  without  hesitation  that  the  authority  is  given.  There 
is  an  important  distinction  between  an  authority  to  find  a 
purchaser  and  an  authority  to  execute  a  contract  of  sale,  which 
is  constantly  recognized  and  applied  by  the  courts,  and  specific 
performance  has  often  been  refused  where  the  transaction 
disclosed  that  the  agent's  powers  were  limited  to  the  mere 
finding  of  a  purchaser.     Thus,  the  expression,  ''I  will  sell," 

8  Karns  v.  Olney,  80  Cal.  90.    It  the    validity    of    such    sale.      See 

is  a  well-settled  rule  that  one  who  France  v.  ^  Haynes,   67   Iowa   139 ; 

with   knowledge   accepts   the   pro-  Moore  v.  Hill,  85  N.  C.  218;  Good- 

ceeds  of  an  unauthorized  sale  of  man  v.  Winter,  64  Ala.  433;  Field 

his  property  is  estopped  to  deny  v.  Doyon,  64  Wis.  560. 


AGENTS    AND    BROKERS.  251 

or  its  equivalent,  acc<)iii[)anied  by  a  siMMilication  of  teiiiiK,  does 
not  confer  any  autliority  on  an  aj;ent  to  make  a  contiaet  of 
sale;''  neither  does  a  correspondence  between  the  owner  and 
a^ent  concerninj;  tlw  property,  or  the  i)rice  and  terms  of  sale 
confer  any  such  auf hoiily.'" 

And  generally,  whenever  a  formal  instrument  conferring 
autliority  n\un\  an  agent  is  emjdoyed,  it  is  to  be  strictly  con- 
strued. It  will  be  held  to  include  only  the  powers  expressly 
given,  and  such  others  as  are  necessary  and  essential  to  carry 
into  efl'ect  those  which  are  expressed." 

The  same  general  principles  that  relate  to  the  ajjpointment 
of  agents  by  a  writing  apply  witli  ('(pial  force  where  the  power 
to  sign  the  name  of  a  principal  to  a  conti'act  of  sale  ma^'  be 
given  verbally;  and  in  every  instance  the  words  used  nnist  be 
unequivocal  in  their  meaning  and  import,  and  should,  with 
the  requisite  degree  of  certainty,  manifest  the  intention  of  the 
principal^  to  do  something  more  than  merely  to  employ  a 
broker.^  2  For  this  reason  it  has  been  held  that  a  verbal 
authority  given  to  an  agent  "to  sell,"  or  "to  close  a  bargain," 
when  applied  to  real  property,  amounts  to  nothing  more  than 
a  mere  authority  to  find  a  purchaser  at  the  price  mentioned, 
and  confers  no  power  on  the  agent  to  sign  the  principal's 
name.i'^ 

A  person  may  as  well  become  an  agent  by  adoption  as  by 
original  appointment;  and  where  a  person  has  assumed  author- 
it}'  to  act,  and  such  actions  have  with  full  knowledge  of  the 
facts  been  ratified  or  confirmed  by  the  principal,  such  person 
will  become  an  agent,  for  all  practical  purposes,  as  fully 
empowered  as  though  he  had  been  previously  appointed.^* 

0  Bosseau  v.  O'Brien,  4  Biss.  (C.  agent  to  "hold  on,"  in  reply  to  one 

Ct.)  395;  Grant  v.  Ede,  85  Cal.  418.  from  him  asking  if  he  would  take 

1"  Bosseau  v.  O'Brien,  4  Biss.  (C.  a  certain  price.     Albertson  v.  Ash- 

Ct.)   395.     Where  the  authority  of  ton,  102  111.  50. 

an  agent  to  sell  land  is  required  by  n  Gilbert  v.  How,  45  Minn.  121. 

the   statute   to  be  evidenced  by  a  12  Duffy  v.  Hobson,  40  Cal.  240. 

writing,   that   requirement   is   not  i''  Duffy  v.  Hobson,  40  Cal.  240; 

fulfilled  by  letters  written  by  the  Milne  v.  Kleb,  44  N.  J.  Eq.  378. 

owner  of  the  property  to  third  per-  i*  Gulick  v.  Grover,  33  N.  J.  L. 

sons  showing  merely  that  a  certain  463;  Adams  v.  Power.  52  Miss.  828; 

real  estate  agent  was  employed  by  Sentell   v.   Kennedy,   29    La.   Ann. 

him   to   solicit   and   negotiate   for  679;    Harrison     v.     McMurray,   71 

prices;  nor  by  a  telegram  to  such  Tex.  122. 


252  AGENTS    AND    BROKERS. 

An  ajxent  acting  under  i)ai'ol  autlioiity  only  cannot  bind  his 
principal  bj  a  written  covenant  under  seal,  signed  with  the 
name  of  such  principal ;^^  but  should  he  execute  a  contract 
under  seal,  such  seal,  if  not  essential  to  the  validity  of  the 
contract,  should  be  regarded  as  mere  surplusage,  and  the 
contract  be  held  good  as  a  simple  contract.^^  So,  also, 
although  an  authority  under  seal  is  necessary  to  enable  an 
agent  to  bind  his  principal  by  a  contract  under  seal,  yet  a 
sealed  contract  not  so  authorized  naay  be  ratified  by  acts  in 
pais,  and  so  become  obligatory  on  the  principal,  provided  it 
is  not  one  of  those  contracts  which  the  law  requires  shall  be 
under  seal.^''^ 

§  204.  Proof  of  authority.  Even  as  an  agent  in  order  to 
bind  his  principal  must  have  authority  to  act,  so  also  jjersons 
dealing  with  him  are  bound  at  their  peril  to  know  this. 
Whether  the  authority  be  verbal  or  written  they  must  inform 
themselves  of  its  nature  and  extent,  and  must  understand  its 
legal  effect.^ '^  For  this  reason,  where  the  name  of  a  party  to 
a  contract  has  been  signed  by  a  person  representing  himself 
to  the  other  party  as  an  agent,  and  the  person  whose  name 
has  thus  been  signed  especially  denies  the  authority  in  a  suit 
to  enforce  it,  the  burden  of  showing  authority  in  the  agent  to 
sign  the  name  of  the  principal,  or  a  subsequent  ratification  by 
him,  falls  on  the  party  who  seeks  to  enforce  the  contract.i^ 

As  a  general  rule,  agency  may  be  XJi'oved  either  directly,  as 
by  express  words  of  appointment,  whether  uttered  orally  or 
contained  in  some  writing ;2o  or  indirectly,  as  by  evidence  of 
the  relative  situation  of  the  parties,  and  their  habit  and  course 

i'"'  Harshaw  v.  McKesson,  65  N.  C.  chaser  may  always  refuse  to  buy 

688.  until  the  agent  produces  such  evi- 

16  Long  V.  Hartwell,  34  N.  J.  L.  dence  of  his  authority  as  to  leave 
116;    Adams   v.    Powers,    52    Miss,  no  doubt  of  its  extent. 

828;    Baum  v.  Dubois,  43   Pa.   St.        lo  Emmons     v.     Dowe,     2     Wis. 
265.  322;    Tribune  Co.  v.  Bradshaw,  20 

17  Adams  v.  Power,  52  Miss.  828.    111.  App.  17. 

And  see  Baum  v.  Dubois,  43  Pa.  St.  20  Where  letters  written  by  the 

265;    Riley  v.   Minor,   29   Mo.  439;  owner  of  land  are  relied  on  as  con- 

Dickerman  v.  Ashton,  21  Minn.  538.  ferring   an    authority    to    sell    the 

18  Davidson  v.  Porter,  57  111.  300;  same,  they  will  be  construed,  with 
Ins.  Co.  v.  Poe,  53  Md.  28;  Rawson  reference  to  the  surrounding  facts 
v.  Curtis,  19  111.  456;  Cooley  v.  Per-  and  circumstances,  in  determining 
rine,   41   N.  J.   L.   322,     The   pur-  whether  they  were  in  fact  intended 


AGENTS    AND    BROKERS.  253 

of  doalinj?,  or  it  may  l)c  iiiiidicd  from  circumstances  or  from 
subsecjiiciit  ratification.-^  It  cannot  be  proved  by  the  mere 
declarations  of  the  agent,  when  the  fad  of  agency  is  in  issue.^z 
In  every  case  whei-e  a  purcliasei-,  i-elyin^  uj)on  an  agent's 
autliority,  seeks  to  enforce  a  contract  iiiach'  under  it,  the  proof 
to  establish  the  power  of  the  agent  must  be  clear,  certain  and 
specifiers 

Tlie  question  as  to  whether  an  agent  has  the  requisite 
authority  to  bind  his  principal  is  a  (luestion  of  law  for  the 
court;  and  this  is  equally  true  whctlicr  such  authority  is 
sought  to  be  sustained  by  a  jH'evious  authorization  or  by  a 
subsequent  ratification.^* 

§  205.  Authority  resting  in  parol.  As  has  been  previously 
stated,  it  is  one  of  the  general  doctrines  of  agency  that  the 
authority  of  an  agent  to  act  for  his  alleged  principal  may  be 
inferred  from  circumstances,  and  does  not,  in  the  absence  of 
statutory  rules  to  the  contrary,  require  direct  evidence  to 
establish  it;-''  and  that  agency,  as  a  question  of  fact,  may  be 
proved  by  the  acts,  declarations  or  conduct  of  the  parties,  even 
though  the  agent  was  appointed  by  power  of  attorney.-^  This 
doctrine,  which  had  its  origin  in  transactions  concerning 
chattels,  and  which  still  continues  to  find  its  most  numerous 
illustrations  in  matters  growing  out  of  chattel  interests, 
should  be  sparingly  applied  when  sales  of  land  are  in  question; 
for  it  not  only  affords  an  avenue  for  the  introduction  of  fraud, 

to  authorize  the  party  addressed  tract   of   sale.     Stillman   v.   Fitz- 

to  make  a  sale.     Bissell  v.  Terry,  gerald,  37  Minn.  186. 

69    111.   184.     Where   a   real-estate  21  Mabley  v.  Irwin,  16  111.  App. 

broker  wrote:      "We   have  a  cus-  362;    Hull   v.   Jones,   69   Mo.   587; 

tomer  who  would  buy  your  lot  if  Harrison  v.  McMurray,  71  Tex.  122. 

offered  at  a  fair  price,"  and  ask-  "-Proctor  v.  Tows,  115  111.  138; 

ing  the   owner   to    state   the   best  Whiteside  v.  Margarel,  51  111.  507; 

price  and  the  terms  for  which  he  Central,  etc.,  Co.  v.  Thompson,  122 

would  sell,  and  pay  their  commis-  Pa.  St.  118. 

sion,   which   was   stated ;    and   the  -^  A  bare  preponderance  of  the 

owner  answered  by  letter  stating  evidence    will    not     be     sufficient, 

the   price,  and,   in  part  only,  the  Proudfoot  v.  Wightman,  78  111.  553. 

terms  for  which  he  would  sell,  and  -*  Gulick  v.  Grover,  33  N.  J.  L. 

that  he  would  pay  their  commis-  463. 

sion — the  broker  was  not  thereby  2.1  Hull  v.  Jones,  69  Mo.  587, 

constituted  the  agent  of  the  owner,  20  Columbia,    etc.,    Co.    v.    Geise, 

with  power  to  bind  him  by  a  con-  38  N.  J.  L.  39. 


25-1  AGENTS    AND    BROKERS. 

but,  in  its  general  features,  is  opposed  to  the  policy  of  the 
law  governing  the  disposal  of  real  property.  It  applies  more 
directly  to  subsequent  than  to  antecedent  circumstances,  and 
in  some  cases  is  a  rule  of  necessity;  as  where,  with  knowledge 
of  the  facts,  the  principal  acquies(-es  in  the  acts  of  the  agent 
under  such  circumstances  as  would  make  it  his  duty  to  repu- 
diate them,  such  acquiescence  is  taken  as  a  confirmation  of 
the  acts  of  the  agent  equivalent  to  authority  antecedently  con- 
ferred ;27  and  even  such  knowledge  may  be  inferred  from  the 
facts  of  the  case.^s 

A  single  act  of  an  assumed  agent,  and  a  single  recognition 
of  his  authority,  may  under  certain  circumstances  be  enough 
to  prove  agency  to  do  similar  acts;^^  but  agency  will  not 
generally  be  presumed  from  a  previous  employment  in  a 
similar  matter. 

Authority  to  make  a  written  contract  is  not  conferred, 
where  the  thing  to  be  sold  is  land,  by  giving  an  agent  a  mere 
power  to  sell.^^ 

§  206.  Authority  in  writing.  Where  by  law  the  authority 
of  an  agent  must  rest  in  writing,  parol  testimon}^  should  be 
excluded  for  the  same  reasons  that  deny  its  admission  when 
the  contract  itself  is  in  dispute.  The  provision  relative  to  the 
authorization  of  the  agent  is,  in  such  case,  as  much  a  part  of 
the  statute  of  frauds  as  the  provisions  which  relate  to  the 
memorandum;  and,  as  parol  testimony  is  refused  in  the  one 
case,  so  also  should  it  be  in  the  other.  And  even  where  the 
written  authorization  of  an  agent  is  not  a  statutory  require- 
ment, if  there  is  proof  that  the  appointment  w^as  in  writing, 
land  there  is  a  question  as  to  the  extent  of  the  power,  the 
paper  itself  must  be  produced  or  accounted  for.  The  agency 
cannot  'be  proved  by  parol  testimony  of  the  contents  of  the 
paper,  or  by  circumstantial  evidence  tending  to  show  that  such 
agency  did  in  fact  exist.^^ 

27  Alexander  v.  Jones,  64  Iowa  3o  Morris  v.  Ruddy,  20  N.  J.  Eq. 
207;  Goss  v.  Stevens,  32  Minn.  472;  238;  Shepherd  v.  Hedden,  29  N.  J. 
Silverman  v.  Bush,  16  111.  App.  L.  343;  Duffy  v.  Hobson,  40  Cal. 
437;    Reynolds  v.  Collins,   78  Ala.  240. 

94.  aiNeal    v.    Patten,    40    Ga.    363; 

28  Curry  v.  Hale,  15  W.  Va.  867.        compare    Columbia,    etc.,    Co.     v. 
20  Wilcox  V.  R.  R.  Co.,  24  Minn.    Geise,  38  N.  J.  L.  39. 

269. 


AGENTS    AND    BROKERS.  255 

Where  the  written  authority  of  an  a^u-nt  to  sell  the  lauds 
of  his  principal  is  required  by  the  statute  of  frauds,  it  must 
receive  the  same  strict  interpretation  as  ordinary  written 
X)owers — such  as  letters  of  attorney  or  letters  of  instruction 
— in  which  the  authority  is  never  extended  beyond  that  which 
is  given  in  terms,  or  is  absolutely  necessary  for  carrying  into 
elfect  that  which  is  exj)ressiy  given.''- 

v^  207.  Telegram  as  authority.  During  very  recent  years  the 
introduction  and  general  use  of  the  telegraph  has  somewhat 
.modified  the  rules  of  law  in  regard  to  writings,  and  by  general 
consent  telegrams  have  been  accorded  the  same  relative  place 
as  letters  and  other  writings  not  under  seal.  Hence,  an 
authorization  by  telegraph  may  properly  be  considered  as  an 
authorization  in  writing;  and  where  an  owner  of  land,  on 
being  notified  of  an  offer  to  purchase  and  learning  all  the 
facts,  sends  a  telegram  to  his  agent  to  accept  the  offer  and 
make  the  sale,  he  will  be  bound  by  a  contract  of  sale  made 
by  his  agent  as  directed.^^ 

^  208.  General  and  special  agents.  A  distinction  is  made 
between  general  and  special  agents.  The  foraier,  having  a 
wide  scope  both  of  duty  and  authority,  represents  his  ])rinci- 
pal  in  all  matters  within  the  ordinary  limits  of  the  principal's 
business,  and  this  may  be  in  one  or  more  places;  the  latter  is 
one  whose  authority  is  definitely  limited,  and  whose  duty  is 
specified.*^^  It  is  said,  that  if  a  general  agent,  acting  within  the 
limits  of  his  business,  violates  instructions  received  from  the 
principal,  the  principal  alone  will  be  liable  to  third  parties; 
but,  if  a  special  agent  violates  instructions,  the  principal  will 
not  be  liable.=^^  It  would  seem,  however,  that  the  distinction 
between  general  and  special  agents  is  of  little  or  no  practical 
value  as  far  as  respects  the  rights  of  third  persons. 

The  law  indulges  in  no  presumptions  respecting  the  char- 
acter of  an  agency,  and  whether  an  agent  is  general  or  special 
is  a  question  of  fact  for  the  jury.^*' 

Agencies  in  respect  to  contracts  for  the  sale  or  conveyance 

32Bissell  V.   Terry.   69   111.   184;  sr.  Cruzan  v.  Smith,  41  Ind.  288; 

Gilbert  v.  How,  45  Minn.  121.  Baxter  v.  Laniont,  60  111.  237. 

■i:!  Chappell  V.  McKnight,  108  111.  36  Dickinson  Co.  v.  Miss.  Valley 

570.  Ins.  Co.,  41  Iowa  286. 

34  Cruzan  v.  Smith,  41  Ind.  288. 


256  AGENTS    AND    BROKERS. 

of  laud  arc  usually  to  be  classed  as  special,  such  agencies  being 
generally  created  for  a  particular  and  defined  purpose;  and 
in  the  construction  of  the  powers  delegated  to  such  agents 
courts  are  e\'er  inclined  to  be  strict.  The  business  of  buying 
and  selling  realty  differs  in  many  respects  from  ordinary  mer- 
cantile transactions,  and  many  of  the  rules  that  possess 
eiTicacy  when  invoked  in  respect  to  such  transactions  are  inap- 
plicable to  determine  questions  raised  by  the  relation  which 
characterizes  a  real  estate  agent  and  his  principal.  This  is  par- 
ticularly true  in  respect  to  general  agency,  which  finds  but  few 
illustrations  where  the  subject-matter  of  the  agency  is  real 
property.  The  agency  may,  however,  be  general,  as  in  any 
other  line  of  commerce  where  intermediaries  and  representa- 
tives are  necessarily  employed;  and  where  an  authority  is 
given  to  an  agent  to  buy  lands  in  a  certain  locality  and  its 
vicinity,  and  to  buy  generally  from  whomsoever  he  may  see  fit, 
no  single  transaction  being  in  view  but  a  number  of  separate 
transactions,  this  would  probably  constitute,  for  certain  pur- 
poses at  least,  a  general  agency .^^ 

If  the  agent  is  appointed  only  for  a  particular  purpose  and 
is  invested  with  limited  powers,  or,  in  other  words,  is  a  special 
agent,  then  it  is  the  duty  of  persons  dealing  with  sucli  agent 
to  ascertain  the  extent  of  his  authority;  and  the  principal 
will  not  be  bound  by  any  act  of  the  agent  not  warranted  by 
or  fairly  and  necessarily  implied  from  the  terms  of  tli.e  author- 
ity delegated  to  him.^^  But  in  the  application  of  this  rule 
to  cases  affecting  the  rights  of  third  persons  who  have  dealt 
with  the  agent  in  good  faith,  care  must  be  talven  not  to  bind 
them  by  limitations  placed  on  the  authority  of  the  agent  by 
the  private  instructions  of  the  principal,  w^hich  are  not  known 
to  such  third  persons,  nor  properly  inferable  from  the  nature 
of  the  agent's  employment.^'-^  Yet,  as  before  remarked,  it  is 
the  duty  of  persons  dealing  with  an  agent  to  ascertain  the 
extent  of  his  authority;  and  usually  where  an  agent  exceeds 
his  powers  the  contract  will  not  be  binding  upon  the  principal, 
and  where  an  action  is  brought  upon  the  contract  the  real 
question  involved  has  respect  only  to  the  extent  of  the  agent's 

37  Butler  V.  Maples,  9  Wall.  (U.  322;  Baxter  v.  Lamont,  60  111.  237; 
S.)  776.  Peabody  v.  Hoard,  46  111.  242. 

38  Cooley  v.  Perrine,  41  N.  J.  L.        3o  Lister  v.  Allen,  31  Md.  543. 


AGENTS    AND    BROKERS.  257 

aiUliorit y,  aud  not  to  the  other  contiacliii}^  [)ar(y'H  knowledge 
of  it.-»o 

ij  209.  Implied  powers.  An  agent  to  sell,  in  the  absence  of 
partiriilai'  insUuclions,  has  the  power  to  do  what  is  usual  and 
necessary  in  elTecting  such  sales  according  to  the  ordinary 
mode  of  doing  business.^ ^  He  may  enter  into  a  contract, 
within  the  terms  of  his  authority,  which  will  bind  his  princi- 
pal^-— this  being  of  the  very  essence  of  an  authority  to  sell — 
and  generally  may  i)erforni  all  such  acts  as  naturally  and  logic- 
ally follow  the  employment.^'^  Under  a  power  to  purchase  land 
and  to  subdivide  and  plat  the  same,  the  agent  may  bind  his 
principal  by  the  dedication  of  land  for  the  uses  of  a  street.^* 

§  210.  Agent  must  pursue  his  authority.  While  all  the 
acts  of  an  agenl,  performed  under  the  direction  of  his  prmcipal 
and  within  the  scope  of  his  agency,  will  bind  the  principal  and 
be  regarded  as  the  principal's  own  acts,  yet  to  effect  this  the 
agent  must  act  within  the  authority  conferred.^'^  If  he  be 
empowered  to  sell  his  principal's  land  in  a  specified  manner, 
at  a  parlicular  time  and  place  and  on  certain  tenns,  such 
terms,  time  and  place  must  be  strictly  observed.'**'  Yet,  though 
the  agent  departs  from  his  instructions,  if  the  unauthorized 
act  is  done  in  the  execution  of  a  power  conferred,  but  in  a 
mode  not  sanctioned  by  the  power  and  in  excess  or  misuse  of 
it,  the  principal  may  still  be  bound  by  ratification;  and  this 
may  be  inferred  from  slight  acts  of  confirmation  on  his  part. 
His  duty  to  disafiirm  at  once  is  imperative  in  sucli  cases."*^ 

An  agent's  powers  cannot  be  enlarged  by  implication  where 
his  authority  is  in  writing;  for  every  instrument  by  which  an 
agency  is  created  for  a  special,  particular  aud  defined  purpose 

•«o  Dickinson  Co.  v.  Miss.  Valley  scope  of  his   authority.     Brett  v. 

Ins.  Co.,  41  Iowa  286.  Bassett,  63  Iowa  340. 

41  Herring  V.  Skaggs,  62  Ala.  180;  ^c  Thornton  v.  Boyden,  31  111. 
Mfg.  Co.  V.  Givan,  65  Mo.  89.  200.     An  agent  authorized  to  sell 

42  Haydock  v.  Stow,  40  N.  Y.  for  $1,500,  if  at  once,  said  he  could 
363.  not,    and    asked    for   lower   terms. 

43  Barteau  v.  West,  23  Wis.  416.  After   a    month,    with    no   further 

44  Barteau  v.  West.  23  Wis.  416.        authority,  he  sold  for  $1,500.  Held, 
4s  Baxter  v.  Lamont,  60  111.  237;    that   the   sale    was    unauthorized. 

Yazel  V.  Palmer,  88  111.  597.     The    Matthews  v.  Sowle,  12  Neb.  398. 
presumption  is  that  one  known  to       47  Meyers  v.  Life  Ins.  Co.,  32  Hun 
be  an  agent  is  acting  within  the     (N.  Y.)  321;  Hart  v.  Dixon,  5  Lea 


(Tenn.)  336. 


17 


258  AGENTS    AND    BROKERS. 

i«  to  bo  construed  strictly;  nor  will  the  introduction  of  formal 
language  in  the  letter  of  appoiutnieni,  tending  to  show  ample 
powers,  \i\ry  or  affect  the  api)lication  of  this  rule.  Thus,  in  an 
appointment  by  letter  of  attorney  stating  the  powers  and 
duties  of  the  agent,  the  formal  clause,  ''giving  and  granting 
unto  our  said  attorney  full  power  and  authority  to  do  and  per- 
form all  and  every  act  and  thing  whatsoever  requisite  and 
necessary  to  be  done  in  and  about  the  premises,"  etc.,  while 
conferring  apparently  unlimited  power  if  read  by  itself,  must 
nevertheless  be  presumed  to  be  used  in  subordination  to  the 
particular  subject-matter  of  the  power,  and  limited  accord- 
ingly.-*** 

A  substantial  compliance,  or  a  compliance  which  involves  no 
material  deviation  from  the  instructions  given,  will  usually  be 
considered  a  sufficient  pursuance  of  the  authority;  as,  where 
an  agent  is  authorized  to  sell  land,  one-half  x>ayable  on  or 
before  one  year,  a  contract  to  sell,  "one-half  payable  in  one 
year,"  is  in  pursuance  of  the  authority,  the  legal  rights  of  the 
vendor  being  the  same  in  either  case.'*^ 

§211.  Agent's  liability  for  breach  of  instructions.  An 
agent  is  bound  to  execute  the  orders  of  his  i)rincipal,  whenever 
he  has  undertaken  to  perform  the  same,  unless  prevented  by 
some  unavoidable  accident  without  fault  on  his  part,  or  unless 
such  orders  require  the  performance  of  an  illegal  or  immoral 
act;  and  in  the  performance  of  the  duty  he  has  undertaken  he 
is  bound  not  only  to  good  faith  but  to  reasonable  diligence, 
and  to  such  skill  as  is  ordinarily  possessed  by  persons  of  com- 
mon capacity  engaged  in  the  same  business.^^  He  is  responsi- 
ble for  all  loss  occasioned  by  any  violation  of  his  duty,  either 
in  exceeding  or  disregarding  his  instructions  ;5^  and  it  is  no 
excuse  that,  in  so  doing,  he  intended  to  act  for  the  benefit  of 
his  principal.^-  A  violation  by  an  agent  of  the  positive  instruc- 
tions of  his  principal  is  gross  negligence,  and  renders  him  lia- 
ble for  such  loss  or  damage  as  may  result  from  it;  and  in  such 
case  every  doubtful  circumstance  is  construed  against  him.^^ 

48  Jenkins  v.  Funk,  33  Fed.  Rep.    181;    Williams  v.  Higgins,  30  Md. 
915.  404;    Adams  v.  Robinson,   65  Ala. 

49  Deakin     v.      Underwood,      37    586. 

Minn.  98.  ^^  Rechtscherd   v.   Bank,   47   Mo. 

50  Heineman  v.  Heard,  50  N.Y.27.    181. 

ei  Rechtscherd   v.   Bank,   47   Mo.        53  Adams  v.  Robinson,  65  Ala.  586. 


AGENTS    AND    BROKERS.  259 

§  212.  Continued — For  misconduct.  The  person  who  bar- 
gains to  render  sei'\  ices  foi-  another  is  deemed  in  hiw  to  under- 
take in  ^(lod  faith  and  inlej,nit_v  the  perfoiniance  of  liis  duties, 
an<l  is  liable  in  damages  to  liis  eniphjyer  for  ne;,di<;enc-e,  bad 
faith  or  dishonesty.  For  gross  misconduct  in  the  course  of  his 
agency  or  intentional  frauds  upon  his  jjiincipal,  he  may  be 
hehl  to  liave  forfeited  all  right  to  coinjtensation  as  respects  any 
of  the  business  of  the  princiiiai  into  which  such  fraud  or  mis- 
condticl  shall  have  entered;'''  and  it  seems  that  the  right  of  a 
principal  to  insist  that  his  agent  has  forfeited  his  right  to  c(mi- 
pensation  by  reason  of  intentional  gross  misconduct  and  fraud 
cannot  be  dependent  n])on  the  jii-incipal's  ability  to  show  the 
precise  extent  of  the  injury  to  him  on  account  of  such  miscon- 
duct by  facts  and  figures/*'"' 

§  213.  Not  liable  for  errors  of  judgment.  While  an  agent 
acting  under  express  instructit)ns  is  liable  for  the  damages 
resulting  from  a  wilful  disregard  of  the  same,  yet  where  he  is 
clothed  with  a  general  discretion  in  the  management  of  the 
busiiu'ss  intrusted  to  him  he  will  not  be  held  responsible  for 
an  honest  mistake  in  its  exercise,  provided  he  acts  with  reason- 
able skill  and  ordinary  diligence/^ 

§  214.  Ratification  of  unauthorized  agency.  The  ratification 
of  an  act  of  another  done  in  an  assumed  capacity  of  agent, 
though  without  any  precedent  authority,  creates  the  relation 
of  i)rincipal  and  agent;  and  the  principal  becomes  bound  by 
the  act  to  the  same  extent  as  if  it  had  been  done  by  a  previous 
authorization.'''^  In  like  manner,  notwithstanding  an  agent 
exceeds  his  authority,  if  the  principal  nevertheless  accepts  the 
benefits  of  the  agent's  acts,  or,  with  full  knowledge  of  them 
subsequently  attained,  fails  to  repudiate  thc^i,  he  will  be  held 
responsible.^** 

lint  before  a  person  can  be  bound  by  ratification  of  an  act 

•'-4  Prescott  V.  White,  18  111.  App.  v.  Kennedy,  29  La.  Ann.  679;  Goss 

322.  V.  Stevens,  32  Minn.  472;   Hankins 

&!•.  Prescott  V.  "White,  18  111.  App.  v.  Baker,  46  N.  Y.  666. 

322.  "^  Williams  v.   Storm,    6    Coldw. 

CO  Schmidt  v.  Pfau,  114  111.  494.  (Tenn.)  203;  Maddux  v.  Bevan.  39 

57  Gulick  V.  Grover,  33  N.  J.  L.  Md.  485;   Watterson  v.  Rogers.  21 

463;  Vjjicent  V.  Rather,  31  Tex.  77;  Kan.  529;   Davis  v.  Krum.  12  Mo. 

Adams    v.    Power,    52    Miss.    828;  App.  279;  Workman  v.  Cuthrie.  20 

Jloby  y.  flossitt,  78  111.  638;  Sentell  Pa.  St.  495;  Brock  v.  Jones.  16  Tex. 


260  AGENTS    AND    BROKERS. 

doue  ill  his  behalf,  it  must  appear  that  he  was  informed  of  all 
the  material  facts  in  the  transaction  ;5»  and,  if  his  assent  has 
been  obtained  while  ignorant  of  those  facts,  he  will  be  at  lib- 
erty to  disallirni  when  informed  of  them,"^ 

The  principal,  when  informed  of  the  nnauthorized  acts  of 
his  agent  with  respect  to  his  property,  must  within  a  reason- 
able time  elect  to  approve  or  disafiinn  them.  It  is  not  neces- 
sary, however,  that  there  should  be  an  express  ratification  to 
bind  the  principal;  but  a  subsequent  assent  may  be  inferred 
from  circumstances  which  the  law  considers  equivalent  to  an 
express  ratiflcation.^i  Thus,  the  act  of  an  agent  may  be  pre- 
sumed to  have  been  ratified  by  his  principal  when  the  acts  and 
conduct  of  the  latter  are  inconsistent  with  any  other  supposi- 
tion ;*52  and  silence  will,  ordinarily,  be  considered  as  equivalent 
to  api)roval.<53  Yet,  while  the  failure  of  the  principal  to  repu- 
diate within  a  reasonable  time  the  acts  of  his  agent,  when 
informed  of  them,  will  be  construed  into  an  acquiescence,  the 
rule  is  always  liberally  applied.  Mere  failure  on  his  part  to 
disavow  an  agent's  acts  instantly  on  being  apprised  thereof  is 
not  in  itself  a  ratification  f"^  but  he  must  act  promptly,  and  if 
with  full  knowledge  of  the  facts  he  ratifies  Ms  agent's  acts, 

461;    Fisher  v.   Willard,   13   Mass.  sided  in  tlie  same  town  with  his 

379;    Jones    v.    Atkinson,    68    Ala.  principal,   when   he   at   length   ab- 

167;  Weisiger  v.  Wheeler,  14  Wis.  sconded   without  having  paid   his 

101.  principal     any     of     the     purchase 

59  Kerr  v.  bharp,  83  111.  199;  Bos-  money,  held,  that  there  was  a  rati- 
seau  V.  O'Brien,  4  Biss.  (C.  Ct.)  fication  of  the  sale.  Alexander  v. 
395;  Rowan  v.  Hyatt,  45  N.  Y.  138;  Jones,  64  Iowa  207.  And  see  Ham- 
Hovey  v.  Brown,  59  N.  H.  114;  mond  v.  Hannin,  21  Mich.  374; 
Dean  v.  Bassett,  57  Cal.  640;  Lester  Meyer  v.  Morgan,  51  Miss.  121. 

V.   Kinne,  37  Conn.   9;    Bannon  v.  c^  Beidman   v.   Goodell,   56   Iowa 

Warfield,    42    Md.    22;    Roberts   v.  592;  Hauss  v.  Niblack,  80  Ind.  407. 

Rumley,  58  Iowa  301.  As  when  he  receives  and  holds  the 

60  Bannon  v.  Warfield,  42  Md.  22;  fruit  of  the  agent's  act.  Maddux 
Lester  v.  Kinne,  37  Conn.  9;  Dean  v.  Bevan,  39  Md.  485.  Or  brings  a 
V.  Bassett,  57  Cal.  640;  Roberts  v.  suit  to  enforce  his  agent's  contract. 
Rumley,  58  Iowa  301.  Benson  v.  Liggett,  78  Ind.  452;  and 

01  Searing  v.  Butler,  69  111.  575.  see  Reid  v.  Hibbard,  6  Wis.  175. 
Where  an  agent  sold  land  without        «3  Meyer  v.  Morgan,  51  Miss.  21 

authority,  but  the  principal  made  Hawkins  v.  Lange,  22  Minn.  557 

no  objection  for  four  years,  during  Kehlor  v.  Kemble,  26  La.  Ann.  713 

which  time  the  purchasers  had  im-  Breed  v.  Bank,  6  Colo.  235. 
proved  the  land,  and  during  three        ^*  Miller  v.  Stone  Co.,  1  111.  App. 

years  of  which  the  agent  had  re-  273. 


AGENTS    AND    BROKERS.  261 

even  U)v  a  monient,  he  i.s  IjouikI  by  thciii.''''  An  electicm  once 
made  i.s  irrevocable/'*' 

The  maxim  that  ratification  is  ecinivalent  to  precedent 
authority  applies  as  well  to  corporations  as  to  natural  ])ersons, 
and  is  e(iually  to  be  i)resumed  from  (he  absence  of  dissent/" 

!^  215.  Effect  of  ratification  as  respects  purchaser.  I'.iit 
while  a  j)riM(ipal  may  be  bound  by  the  subscMjiu-nt  ratification 
of  an  unau(liori/e<l  act  on  the  jtarl  of  an  aj;ent,  it  has  been 
held  by  one  line  of  authority  that  the  other  party  may  refuse 
to  consummate  the  transaction  and  rei)udiate  the  contract. 
As  a  reason  for  this  doctrine  it  is  said  that  if  the  principal  was 
not  bound  by  the  a^a'eement  of  the  aj^ent  when  he  made  it, 
then  the  contract  is  void  foi-  want  of  mutuality,  and  the  subse- 
quent acts  of  the  principal  allirming  the  authority  of  the  agent 
cannot  validate  the  contract  so  as  to  bind  the  other  party 
without  his  assent.  The  rule  of  law  undoubtedly  is  that  botli 
parties  should  be  bound  by  the  contract  or  neither  should  be 
bound,  and  that  the  rule  is  a  just  one  none  can  deny;  and  it 
clearly  stands  to  reason  that,  where  one  party  was  not  bound 
by  a  contract  when  it  was  entered  into  by  one  claiming  to  be 
his  agent,  but  who  in  fact  was  not  such,  agent  and  had  no 
authority  to  bind  his  principal,  such  party  should  not  be 
allowed  afterwards,  when  he  finds  the  contract  advantageous 
to  him,  to  affirm  the  contract  made  on  his  behalf  by  such 
unauthorized  person  and  compel  the  other  party  to  perform  it 
on  his  part.''** 

Yet,  while  the  principles  just  stated  find  support  and  affinn- 
ance  in  the  decisions  of  several  courts  of  the  highest  standing, 
the  weight  of  authoritj'  seems  to  bear  in  an  opposite  direction. 
It  has  been  suggested  that  a  contract  entered  into  by  one  of 
the  i)arties  in  jx'rson  and  for  the  other  party  by  an  unauthor- 
ized agent  amounts,  practically,  to  a  mere  proposal  or  olTer  on 
the  part  of  the  former  from  which  he  would  have  a  right  to 
recede  until  it  had  been  ratified  or  accepted  by  the  other  party 
so  as  to  become  binding  upon  him,  and  that  the  other  party 

«•"'  Silverman  v.  Bush,  16  111.  App.        ««  Atlee  v.  Bartholomew,  69  Wis. 

437.  43;  and  see  Townsend  v.  Corning. 

«« Andrews  v.  Ins.  Co.,  92  N.  Y.  23  Wend.   (N.  Y.)   435;   Wilkinson 

596.  V.  Heavenworth,  58  Mich.  574. 

<'7  Kelsey  v.   National   Bank,   69 
Pa.  St.  426. 


262  AGENTS    AND    BROKERS. 

may,  within  a  reasonable  time  after  receiving  notice  of  its 
existence,  elect  to  accept  by  a  ratification  or  confimiance  of 
tlie  prior  unauthorized  act.*''^  The  rule  has  further  been  laid 
down  lliat  the  principal,  upon  being  informed  of  an  act  of  his 
agent  in  excess  of  his  authority,  has  the  right  to  elect  whether 
he  will  adoi)t  the  unauthorized  act  or  not;  and  so  long  as  the 
condition  of  the  parties  is  unchanged  he  cannot  be  prevented 
from  such  adoption  because  the  other  party  to  the  contract 
may  for  any  reason  prefer  to  treat  the  contract  as  invalidJ^ 

§  216.  Effect  of  ratification  as  respects  principal.  While  it 
is  undoubtedly  true  that  a  ratification  should  be  the  intelligent 
act  of  the  principal,  given  with  full  knowledge  of  the  facts,  yet 
if  a  principal  adopts  the  contract  of  a  self-constituted  agent 
who  has  assumed  to  act  for  him  without  authority,  he  is 
charged  with  the  duty  of  ascertaining  the  extent  to  which 
such  agent  has  assumed  to  act  in  his  behalf.  By  adopting 
such  contract  he  not  only  assents  to  whatever  may  appear  in 
WTiting,  but  adopts  as  his  own  acts  all  of  the  instrumentalities 
of  the  agent  in  securing  the  contract.'''^  The  reason  for  this  is 
that  as  he  seeks  to  avail  himself  of  the  benefits  to  be  derived 
from  the  agent's  acts  so  he  must  assume  all  the  liabilities 
which  attach  thereto,  as  fully  as  if  he  had  himself  induced  the 
contract  in  the  first  instance.'^ - 

Where  a  principal  has  expressly  repudiated  the  unauthor- 
ized act  of  his  agent,  delay  in  bringing  a  necessary  suit  cannot 
be  deemed  a  ratification.'^ 

§  217.  Agent's  signature.  It  would  seem  that,  if  an  instru- 
ment which  shows  on  its  face  the  names  of  the  contracting 
parties  is  executed  by  an  agent,  the  agent  may  sign  his  own 
name  first,  adding  "agent  for"  his  principal;  or  he  may  sign 
the  name  of  his  principal  first,  and  add  "by"  himself  "as 
agent."^"*  This  is  undoubtedly  the  rule  in  respect  to  all 
unsealed  instruments;  and,  as  agreements  for  the  sale  of  lands 

60  See  note  to  Atlee  v.  Bartholo-  ^i  Busch  v.  Wilcox,  82  Mich.  336; 

mew,  5  Am.  St.  Rep.  103.  Shoninger  v.  Peabody,  57  Conn.  42. 

vo  Andrews  V.  Life  Ins.  Co.,  92  N.  72  Morse  v.   Ryan,   26   Wis.   356; 

Y.  596;  and  see  Hammond  v.  Han-  Fitzsimmons  v.  Joslin,  21  Vt.  142. 

nin,  21  Mich.  374;    State  v.  Shaw,  "  McClure  v.  Evartson,    14    Lea 

28  Iowa  67.  This  view  is  also  taken  (Tenn.)  495. 

by  Story.     See  Story's  Agency,   §  -^  Smith  v.  Morse,  9  Wall.  (U.  S.) 

245  et  seq.  76. 


AGENTS    AND    BROKERS.  2C3 

do  not  ordinarily  reciuire  a  Heal,  would  piohably  be  permitted 
to  prevail,  even  where  the  agreement  purports  to  be  under 
seal.  A  different  rule  would  prevail  in  case  of  the  execution 
of  powers  of  attorney  where  tlie  sij,'nature  sliotild  jjurytort  to 
be  that  of  the  principal  and  not  the  aj^eut. 

Where  the  contract  is  sij^ned  by  the  agent  with  his  own  sig- 
nature, though  qualifi<'d  by  the  word  **agent,"  such  addition 
will  ordinarily  be  regarded  as  a  simple  descri[)tion  of  the  \h'1'- 
son — furnishing,  perhaps,  a  mode  of  identification,  yet  availa- 
ble for  no  other  purpose.  Such  is  the  ordinarily-accepted  rule 
when  the  body  of  the  contract  fails  to  show  any  additional 
act  of  agency ;^^'  but  if,  from  the  entire  instrument,  it  satisfac- 
torily ajjpears  that  the  person  executing  acts  only  as  an  agent 
and  intends  to  bind  his  principal  and  not  himself,  a  liberal  con- 
struction will  be  given  to  if^*^ 

§  218.  Revocation  of  authority.  A  contract  of  agency  may 
be  terminated  in  a  number  of  ways.  Thus,  the  authority  may 
expire  by  the  limitation  of  the  contract;  it  ma}'  be  revoked  by 
the  principal,  or  it  may  be  determined  by  operation  of  law. 
Ordinarily,  when  an  agent  is  employed  to  sell  land  the  agency 
is  at  an  end  as  soon  as  a  purchaser  is  obtained.^''' 

An  agency  may  be  revoked  at  any  time  before  sale  unless 
CK)upled  with  an  interest  or  given  for  a  valuable  considera- 
tion;""' and  generally  where  the  principal  disposes  of  the  sub- 
ject-matter of  the  agency,  this,  by  implication  of  law,  will  ojter- 
ate  as  a  revocation  of  the  i)ower  of  his  age^nt  to  sell  the  same."'' 
But  where  a  party  engages  the  services  of  another  to  assist 
him  in  making  any  disposition  of  his  property,  if  he  desires  to 
dispense  with  such  services  he  should  give  the  other  party 
notice;  if  he  does  not  and  the  service  is  rendered,  he  will  be 
required  to  pay  for  the  same.^" 

75  Hall  V.  Cockrell,  28  Ala.  507;  7s  Brown  v.  Pforr,  38  Cal.  550; 

Crum  V.  Boyd,  9  Ind.  289;  Forster  Chambers  v.   Seay,    73    Ala.    372; 

V.   Fuller,   6   Mass.  58;      Sayre     v.  Simpson   v.   Carson,    11    Ore.    361; 

Nichols,    5    Cal.    487;    Bingham    v.  Haydock  v.  Stow,  40  N.  Y.  363. 

Stewart,  13  Minn.  106.  to  Bissell   v.   Terry,   69    111.   184; 

70  See  Sturdivant  V.  Hull,  59  Me.  Wells  v.   Hatch,     43     N.   H.   246; 

172;   Smith  v.  Morse,  9  Wall.   (U.  Brown  v.  Pforr,  38  Cal.  550. 

S.)  76.  so  Bash  v.  Hill,  62  HI.  216. 

77  Short  V.  Willard.   68   111.   292; 
Moore  v.  Stone,  40  Iowa  259. 


264  AGENTS    AND    BROKERS. 

After  revocation  of  an  agent's  authority  the  principal  is  not 
bound,  as  between  himself  and  the  agent,  to  notify  the  latter 
of  his  dissent  from  acts  done  by  such  agent  in  pursuance  of 
the  original  authority  ;^^  but,  with  regard  to  third  persons,  the 
general  rule  is  that  one  who  has  dealt  with  an  agent  in  a  mat- 
ter within  the  agent's  authority  has  a  right  to  assume,  if  not 
otherwise  informed,  that  the  authority  continues;  and  unless 
notice  of  revocation  is  brought  home  to  him  the  principal  will 
ordinarily  be  bound  if  the  dealings  continue  after  the  author- 
ity is  revoked.^2 

A  principal's  insanity,  inasmuch  as  it  deprives  him  of  the 
capacity  to  act  for  himself,  will  also  have  the  effect  of  a  revo- 
cation of  the  authority  of  his  agent,  except  in  cases  where  a 
consideration  has  previously  been  advanced,  so  that  the  power 
has  become  coupled  with  an  interest  ;^^  or  where  a  considera- 
tion of  value  is  given  by  a  third  person  trusting  to  an  appar- 
ent authority  and  in  ignorance  of  the  principal's  incapacity.^* 

Where  two  principals  jointly  appoint  an  agent  to  take 
charge  of  a  matter  in  which  they  are  jointly  interested,  a  sever- 
ance of  their  interest  revokes  the  agency.*^ 

§  219.  Agency  coupled  with  interest.  As  previously  stated, 
the  principal  may  generally  terminate  the  agency  at  his  pleas- 
ure, provided  that  the  same  is  not  coupled  with  an  interest  in 
favor  of  the  agent.  But  if  the  agent  has  a  direct  interest  in  the 
subject-matter  of  the  agency  or  in  the  execution  of  the  powers 
thereby  conferred,  the  rule  is  different,  and  the  principal  will 
not  be  permitted  to  revoke  the  same  where  such  revocation 
is  to  the  injury  of  the  agent  or  prejudicial  to  his  interests; 
and,  notwithstanding  that  he  may  have  attempted  so  to  do,  the 
agent  may  still  continue  to  act  and  to  fully  accomplish  the 
original  purpose.^^ 

The  agent's  interest,  however,  must  be  tangible — consisting 
either  of  some  vested  right  in  the    subject-matter    of    the 

81  Kelly  V.  Phelps,  57  Wis.  425.  sg  Varnum  v.  Meserve,    8    Allen 

82  McNeilly  v.  Ins.  Co.,  66  N.  Y.  (Mass.)  158;  Hutchins  v.  Hebbard, 
23;  Claflin  v.  Lenheim,  66  N.  Y.  34  N.  Y.  24;  Hynson  v.  Noland,  14 
301.  Ark.  710;  Bonney  v.  Smith,  17  111. 

83  Haggart  v.  Ranger,  15  Fed.  531 ;  Wheeler  v.  Knoggs,  8  Ohio 
Rep.  860.  169;    Dougherty  v.  Moon,  59  Tex. 

"  Hill  V.  Day,  34  N.  J.  Eq.  150.         397. 
85  Rowe  V.  Rand,  111  Ind.  206. 


AGENTS    AND    BROKERS.  2Go 

agency,  the  laud  ilself,  or  iii  thi'  proct'i-ds  that  may  be  di-rivcil 
from  its  sale,  and  which  to  a  certain  extent  represent  the  land. 
Hence,  a  mere  right  to  a  percentage  of  tlie  proceeds  derived 
from  sale,  to  be  retained  by  way  of  compensation,  constitutes 
no  interest;**'  nor  will  expenditures  made  by  the  agent  in 
endeavoring  to  carry  out  the  object  of  the  agency  come  within 
the  m-'auiug  of  the  rule;  but  if  land  be  intrusted  to  anotlier  to 
sell  and  from  the  proceeds  thus  derived  to  first  reimburse  him- 
self for  moneys  theretofore  advanced  to  his  princijjal,  or  in  the 
satisfaction  of  a  debt  of  any  kind  previously  contracted,  the 
interest  thus  acquired  attaches  to  the  land  in  his  hands  and 
cannot  be  divested. 

§  220.  Agent's  authority  terminates  with  principal's  death. 
As  an  agent  is  merely  a  representative,  it  naturally  and  logic- 
ally follows  that  his  powers  in  this  respect  are  immediately 
determined  upon  the  death  of  the  person  for  whom  he  i)ro- 
fesses  to  act.  His  authority  is  not  revoked,  in  the  projter 
acceptation  of  the  term,  for  this  implies  that  it  has  to  be 
recalled  or  resumed  by  the  i)erson  from  whom  it  e^manates,  but 
absolutely  ceases,  for  there  cannot  be  an  agent  without  a  prin- 
cipal f^  and  the  fact  that  the  agent,  in  ignorance  of  his  princi- 
pal's death,  has  in  good  faith  contracted  after  that  event  does 
not  alter  the  rule  or  confer  upon  the  other  contracting  party 
any  additional  rights.^*^ 

§  221.     Undisclosed    principal.      The  rule  is  well  established 

«7  Thus,  a  power  to  sell  and  re-  Seay,  73  Ala.  372.  An  agreement 
ceive  the  proceeds  above  a  certain  as  to  a  certain  portion  of  the  net 
sum  by  way  of  commission  is  not  profits  to  be  derived  from  a  sale  of 
a  power  coupled  with  an  interest  land  gives  the  agent  no  interest  in 
which  cannot  be  revoked.  Simp-  the  land.  LeMoyne  v.  Quimby,  70 
son   v.  Carson.   11  Ore.   361.     And    111.  399. 

where  the  owner  of  land  contain-  ««  Travers  v.  Crane.  15  Cal.  12; 
ing  iron  ore  authorized  an  agent  Davis  v.  Bank,  46  Vt.  728;  Cleve- 
in  writing  to  sell  the  land,  the  land  v.  Williams.  29  Tex.  204;  Salt- 
agent  agreeing  to  transport  speci-  marsh  v.  Smith,  32  Ala.  404;  Mc- 
mens  of  the  ore  to  England,  and  to  Donald  v.  Black.  20  Ohio  185;  Clay- 
receive  as  compensation  "an  undi-  ton  v.  Merritt.  52  Miss.  353. 
vided  one-fourth  interest  in  the  «» See  Gait  v.  Galloway,  4  Pet. 
proceeds  of  sale  when  sold  as  (U.  S.)  332;  Davis  v.  Bank,  46  Vt. 
aforesaid." — held,  that  the  agent's  728;  Travers  v.  Crane.  15  Cal.  12; 
authority  was  not  coupled  with  an  Clayton  v.  Merritt.  52  Miss.  353; 
Interest,  and  was  revocable  at  any  Estate  of  Rapp  v.  Ins.  Co..  113  111. 
time    before    sale.      Chambers    v.    390. 


266  AGENTS    AND    BROKERS. 

in  respect  to  chattel  sales  that  u  principal,  although  not  dis- 
closed bj  the  agent,  is  nevertheless  responsible  on  the  agent's 
contracts  if  the  hitter  had  power  to  make  them.  By  contract- 
ing in  his  own  name  he  only  adds  his  personal  liability  to  that 
of  his  principal;  and  the  seller,  upon  discovering  the  principal, 
may  elect  to  hold  either  ])rinLi})al  or  agent  responsible  for 
the  price.'*^  This  doctrine  has  been  held  to  obtain  as  well  in 
respect  to  contracts  which  are  recpiired  to  be  in  writing  as  to 
those  where  a  writing  is  not  essential  to  their  validity;?*^  and 
a  principal  may  be  charged  upon  a  written  executory  contract 
entered  into  by  an  agent  in  his  own  name  within  his  author- 
ity, although  the  name  of  the  pi'incipal  does  not  appear  in 
the  instrument,  and  the  part}'  dealing  with  the  agent  supposed 
he  was  acting  for  himself.^^  It  is  somewhat  diflficult,  how-ever, 
to  reconcile  this  doctrine  with  the  rule  that  parol  evidence  is 
inadmissible  to  change,  enlarge  or  vary  a  written  contract; 
and  the  argument  upon  which  it  is  supported  savors  strongly 
of  refined  subtlety.  Some  of  the  cases  proceed  upon  the  quali- 
fied theory  that  a  written  contract  of  an  agent  may  be  enforced 
against  the  principal  when  it  can  be  collected  from  the  whole 
instrument  that  the  intention  was  to  bind  the  principal  ;'^^ 
but  it  would  seem,  from  the  preponderance  of  authorit},  that 
this  qualification  is  no  longer  regarded  as  an  essential  part 
of  the  doctrine.*^^  It  has  further  been  contended  in  this  con- 
nection that  if  evidence  showing  an  unnamed  principal 
amounts  merely  to  an  explanation  of  the  real  character  of  the 
transaction,  and  does  not  in  any  degree  cont.^adict  or  qualify 
the  provisions  and  stipulations  of  the  contract  itself,  and  that 
in  all  cases  where  the  character  in  which  parties  contract  is 

90  Youghiogheny  Ice  Co.  v.  Smith,  Davis     v.     McKinney,     6     Coldw. 

66  Pa.  St.  340;  Davis  v.  McKinney,  (Tenn.)    18. 

6  Coldw.    (Tenn.)    15;      Duvall     v.  »i  Dykers  v.  Townsend,  24  N.  Y. 

Wood,  3  Lans.  (N.  Y.)  489;  Meeker  61;    Huntington  v.  Knox,  7  Cush. 

V.  Claghorn,  44  N.  Y.  349.     But  it  (Mass.)   371;  Coleman  v.  Bank,  53 

seems  that,  where  the  real  prihci-  N.  Y.  393. 

pal  is  known  to  the  seller  at  the  "^  Briggs  v.  Partridge,  64  N.  Y. 

time,  but  the  contract  is  made  in  357. 

the  name  and  upon  the  credit  of  93  See  Negus  v.  Simpson,  99  Mass. 

the  agent,   the  contract     will     be  388. 

deemed  to  be  with  the  agent  in-  94  See  Eastern  R.  R.  Co.  v.  Bene- 

dividually,  exclusive  of  liability  on  diet,  5  Gray   (Mass.)    566;   Briggs 

the  part  of   the   actual   principal,  v.  Partridge,  64  N.  Y.  357. 


AGENTS    AND    BROKERS. 


267 


not  defined  on  the  face  of  the  \vrilin<;,  it  is  com[>etent  to  show- 
that  one  or  both  of  the  contiactinj;  parties  were  agents  for 
other  persons  and  acted  as  such  in  inakin^jj  the  contract,  so  as 
to  give  the  benefit  of  the  contract  to  the  unnamed  pi-incipal."''' 

Nor  will  auy  question  arise,  under  a  contract  made  in  this 
manner,  with  reference  to  the  statute  of  frauds;  for  the  stat- 
ute provides  that  the  memorandum  sliall  be  signed  by  the 
party  to  be  charged  or  his  ag«'nt  duly  authorized,  and  if  exe- 
cuted by  the  agent  pursuant  to  authority  it  would,  it  seems,  be 
a  valid  execution  and  the  principal  would  be  bound."*' 

A  different  case  is  i)resented  when  the  contract  is  under 
seal.  Can  a  contract  under  seal,  made  by  an  agent  in  his  own 
name  for  the  purchase  of  land,  be  enforced  as  the  simole  con- 
tract of  the  real  piincipal  when  he  shall  be  discovered?  There 
are  cases  which  hold  that  when  a  sealed  contract  has  been 
executed  in  such  form,  that  it  is,  in  law,  the  contract  of  the 
agent  and  not  of  the  principal;  but  if  the  principal's  interest 
in  the  contract  appears  upon  its  face  and  he  has  received  the 
benefit  of  performance  by  the  other  party  and  has  ratified  and 
confirmed  it  by  acts  in  pais,  and  the  contract  is  one  which 
would  have  been  valid  without  a  seal,  the  principal  may  be 
made  liable  in  assumpsit  upon  the  promise  contained  in  the 
instrument,  which  may  be  resorted  to  to  ascertain  the  teniis 
of  the  agreement.'''^ 


OS  See  1  Addison,  Cont.  42. 
Chandler  v.  Cox,  54  N.  H.  561,  was 
a  case  in  which  the  principals  were 
sued  upon  a  contract  which  was 
signed  by  their  agent,  but  which 
did  not  upon  its  face  disclose  an 
agency.  It  was,  however,  a  ques- 
tion of  fact  whether  or  not  the 
principals  were  known  to  be  such 
at  the  time  the  contract  was  exe- 
cuted. The  court,  in  an  able  and 
elaborate  opinion,  which  reviews 
all  the  authorities,  held,  that  if  the 
principals  were  not  known  when 
the  agreement  was  signed,  parol 
evidence  was  admissible  to  show 
the  agency  of  the  signer  and  to 
charge  the  principal;  but  that  if, 
in  point  of  fact,  agency  was  then 


disclosed,  such  evidence  tended  to 
vary  the  writing,  and  could  not  be 
admitted.  The  ground  of  the  rul 
ing  upon  the  latter  point  was  that 
if  the  plaintiff  knew,  when  the  con- 
tract was  entered  into,  that  it  was 
made  for  the  benefit  of  third  par- 
ties, the  writing  showed  that  they 
had  elected  to  look  to  the  agent  for 
its  performance,  and  parol  evi- 
dence was  not  admissible  to  vary 
the  writing  by  showing  that  they 
did  not  so  elect. 

90  Lawrence  v.  Taylor,  5  Hill  (N. 
Y.)  113. 

OT  Du  Bois  V.  Canal  Co.,  4  Wend. 
(N.  Y.)  285;  Lawrence  v.  Taylor,  5 
Hill   (N.  Y.)   107. 


268 


AGENTS    AND    BROKERS. 


The  rule  is  fundamental,  however,  that  those  persons  only 
can  be  sued  on  an  indenture  who  are  named  as  parties  to  it, 
and  tliat  no  action  can  lie  against  one  person  on  a  covenant 
which  i)ui'ports  to  have  been  made  by  another/-*'^  It  is  also 
true  that  a  seal  has  lost  most  of  its  former  significance,  yet 
the  distinction  between  specialties  and  simple  contracts  has 
not  been  obliterated;  and  in  the  absence  of  authority  it  may 
safely  be  asserted  that  a  contract  under  seal,  in  those  states 
where  a  seal  is  still  recognized,  may  not  be  turned  into  the 
simple  contract  of  a  person  not  in  any  way  appearing  on  its 
face  to  be  a  party  to  or  interested  in  it,^  on  proof  dehors  the 
instrument  that  the  nominal  party  was  acting  as  the  agent  of 
another.2 

§  222.  When  agent  becomes  personally  liable.  Where  an 
agent  undertakes  to  contract  on  behalf  of  an  individual  or 
corporation,  and  contracts  in  a  manner  which  is  not  legally 
binding  upon  his  principal,  he  will  be  personally  responsible, 
as  he  is  presumed  in  such  case  to  know  the  exact  extent  of  his 
authority.^     This  is  an  elementary  rule  of  the    law    of    con- 


98  Spencer  v.  Field,  10  Wend.  (N. 
Y.)  88;  Townsend  v.  Hubbard,  4 
Hill  (N.  Y.)  351.  In  this  case  it 
was  held  that,  where  an  agent  duly 
authorized  to  enter  into  a  sealed 
contract  for  the  sale  of  the  land 
of  his  principals  had  entered  into 
a  contract  under  his  own  name  and 
seal,  intending  to  execute  the  au- 
thority conferred  upon  him,  the 
principals  could  not  treat  cove- 
nants made  by  the  agent  as  theirs, 
although  it  clearly  appeared  in  the 
body  of  the  contract  that  the  stipu- 
lations were  intended  to  be  be- 
tween the  principals  and  purchas- 
ers, and  not  between  the  vendees 
and  the  agent.  The  plaintiffs  in 
this  case  were  the  owners  of  the 
land  embraced  in  the  contract,  and 
brought  their  action  in  covenant  to 
enforce  the  covenant  of  the  ven- 
dees to  pay  the  purchase  money; 
and  the  court  decided  that  there 
was  no  reciprocal  covenant  on  the 


part  of  the  vendors  to  sell,  and  that 
for  want  of  mutuality  in  the  agree- 
ment the  action  could  not  be  main- 
tained. 

1  Huntington  v.  Knox,  7  Gush. 
(Mass.)  374,  in  which  the  general 
rule  is  declared  that,  "where  a  con- 
tract is  made  by  deed  under  seal 
on  technical  grounds,  no  one  but  a 
party  to  the  deed  is  liable  to  be 
sued  upon  it;  and  therefore,  if 
made  by  an  attorney  or  agent,  it 
must  be  made  in  the  name  of  the 
principal  in  order  that  he  may  be  a 
party,  because  otherwise  he  is  not 
bound  by  it." 

2  This  is  especially  the  case  in 
the  absence  of  any  proof  that  the 
alleged  principal  has  received  any 
benefit  from  it,  or  has  in  any  way 
ratified  it.  Briggs  v.  Partridge,  64 
N.  Y.  357. 

•"i  Merrill  v.  Wilson,  6  Ind.  426; 
Pierce  v.  Johnson,  34  Conn.  274; 
Mann   v.   Richardson,    66    111.   481. 


AGENTS    AND    BROKERS.  269 

tracts;  and  tlioii<rh  modern  dpcisioiiH  liavt*  in  a  great  measure 
relaxed  the  strinjjency  of  the  older  rules  relative  to  undis- 
closed principals,  and  permitted  an  inquiry  as  to  the  actual 
parties,  the  law  in  this  respect  is  usually  adhered  to  without 
deviation.'* 

Where,  however,  one  who  has  no  authority  to  act  as  anoth- 
er's ajijent  assumes  so  to  act,  and  makes  a  deed  or  a  simple 
contract  in  the  name  of  the  other,  he  is  not  as  a  rule  person- 
ally liable  on  the  covenants  in  the  dc^d  or  the  promise  in  the 
simple  contract,  unless  it  contains  ai)t  words  to  bind  him  per- 
sonally.-'' The  remedy  in  such  case  is  by  an  action  on  the  case 
for  falsely  representing  himself  to  be  authorized  to  bind  liis 
principal.*'  It  has  sometimes  been  sought,  in  a  case  of  this 
character,  to  bind  the  agent  by  the  introduction  of  i>arol  evi- 
dence tending  to  show  that  in  signing  the  agreement  the  one 
who  purports  to  sign  as  agent  signed  the  name  of  the  principal 
for  his  own  benefit,  and  with  the  intention  to  bind  himself. 
This,  however,  has  always  been  denied  as  being  opposed  to  the 
fundamental  rule  that  parol  evidence  cannot  be  introduced 
to  vary  the  terms  of  a  written  agreement.  Nor  does  this  rul- 
ing militate  against  the  exception  ordinarily  allowed  in  the 
case  of  undisclosed  principals.  In  the  latter  case  parol  evi- 
dence is  admitted  to  show  who  is  meant  by  the  signature;  it 
does  not  vary  the  written  contract,  but  only  serves  to  identify 
the  real  contracting  party.  But  where  the  contract  discloses 
the  names  and  relations  of  the  parties;  where  it  pui-ports  to 
be  the  act  of  the  principal,  and  where  the  agent  does  not 
assume  to  bind  himself, — to  permit  to  be  shown  by  parol  testi- 
mony an  intention  exactly  contrary  to  that  expressed  on  the 
face  of  the  writing  w^ould  be  a  direct  violation  of  a  cardinal 
rule  of  evidence. 


This  rule  is  not  without  apparent  McClellan  v.  Parker,  27  Mo.  162; 
exceptions;  and  an  agent  acting  Royce  v.  Allen,  28  Vt.  234. 
without  authority  will  not,  it  •'' Abbey  v.  Chase,  6  Gush.  (Mass.) 
seems,  be  held  personally  liable  54;  Gole  v.  O'Brien,  34  Neb.  68; 
when  the  want  of  authority  was  Hall  v.  Grandall,  29  Gal.  567;  Dun- 
known  to  both  parties,  or  even  can  v.  Niles,  32  111.  532. 
where  it  was  unknown  to  both  par-  c  Draper  v.  Steam  Heating  Co., 
ties.  See  Walker  v.  Hinze,  16  111.  5  Allen  (Mass.)  338;  and  see  Bart- 
App.  326.  lett  V.  Tucker.  104  Mass.  339;  Graf- 
*  See  Wheeler  v.  Reed,  36  111.  81;  ton  Bank  v.  Flanders,  4  N.  H.  239; 


270  AGENTS    AND    BROKERS. 

§  223.  When  principal  chargeable  with  agent's  acts.  As  a 
general  rnle  a  principal  is  bound  by  acts  and  representations 
of  his  ajicnt  rcspectinf;-  the  subjcct-mattei'  of  the  agency,  if 
made  at  tlie  same  time  as  the  transaction/  and  is  affected  with 
all  the  knowledge  the  agent  had  in  relation  thereto.^  He  is 
not  only  responsible  for  those  contracts  which  have  been 
actually  made  under  his  express  authority,  but  will  be  bound 
as  well  in  those  cases  where  the  agent  is  acting  within  the 
usual  sco})e  of  his  employment,  or  is  held  out  to  the  public  or 
to  the  other  party  as  having  competent  authority,  although  in 
fact  he  has  in  the  particular  instance  exceeded  or  violated  his 
instructions  and  acted  without  authority.^  Where  the  agent's 
authority  is  by  law  required  to  be  in  writing,  this  rule  cannot 
be  said  to  apply;  but  if  no  such  requirement  exists,  it  will  hold 
good  in  matters  pertaining  to  the  sale  of  land  equally  with 
purely  chattel  interests.  It  would  seem  further,  that  there  is 
no  distinction,  in  the  matter  of  responsibility,  between  an 
agent  authorized  to  do  business  generally  and  one  employed 
to  conduct  a  single  transaction,  if,  in  each  case,  he  is  acting  in 
the  business  for  which  he  was  employed  by  the  principal.^^ 

It  is  said,  that  the  ground  upon  which  the  acts  and  declara- 
tions of  an  agent  are  admitted  in  evidence  against  his  princi- 
pal is,  that  whatever  he  says  or  does  in  reference  to  the  busi- 
ness in  which  he  is  at  the  time  employed,  and  which  is  within 
the  scope  of  his  authority,  is  done  or  said  by  the  principal. 
But  to  bring  such  statements,  representations  or  admissions 
within  the  rule  it  is  essential  that  they  should  be  made  by  the 
agent  at  the  time  of  the  transaction,  either  while  he  was 
actually  engaged  in  its  performance  or  so  soon  thereafter  as 
to  be  a  part  of  it.^^ 

It  is  a  further  rule,  however,  that  before  one  can  be  affected 
by  the  acts  and  declarations  of  another  as  his  agent,  the 
agency  must  be  proved;^-  and  where  the  question  is  as  to  the 

Weare  v.  Gove,  44  N.  H.  196;  White  »  See  Story,  Agency,  §  443. 

V.  Madison,  26  N.  Y.  117;  Taylor  v.  lo  Hasltell  v.  Starbird,  152  Mass. 

Shelton.  30  Conn.  122.  117. 

T  Robinson    v.    Walton,    58    Mo.  n  Cole   v.   O'Brien,    34    Neb.    68; 

380;    Keough  v.  Leslie,  92  Pa.  St.  Hall  v.  Crandall,  29  Cal.  567;  Dun- 

424;    Bennett  v.  Judson,   21   N.  Y.  can  v.  Niles,  32  111.  532. 

238;  Bank  v.  Gregg,  14  N.  H.  331;  12  Gibbs  v.  Holcomb.  1  Wis.  23; 

Echols  V.  Dodd,  20  Tex.  190.  Emmons  v.  Dowe,  2  Wis.  322. 

8  Hazleton  v.  Agate,  11  Rep.  559. 


AGENTS    AND    BROKERS.  271 

extent  of  the  agent's  powors,  it  iinisL  lirwt  be  shown  that  they 
extend  to  the  acts  or  dec  la  rations  in  (lueslion,'-'  Thus,  the 
owner  of  property  is  not  bound  by  representations  made  con- 
cerning it,  without  his  authority  or  knowh'dge,  by  one  not 
authorized  to  make  a  sale  of  it,  but  simply  to  procure  some  per- 
son to  negotiate  with  the  owner.^ ' 

The  acts  and  declarations  of  an  agent,  made  after  the  trans- 
action to  which  they  relate,  are  not  admissible  to  bind  the 
principal.'"' 

§  224.  Fraud  of  agent.  The  fraud  of  an  agent  will  be 
chargeable  to  the  prin(ii)al  whenever  he  has  had  the  benefit  of 
the  fraud,!"  ev(  n  thougli  he  was  ignorant  of  it;!'^  and  usually 
whether  the  agent,  representing  a  material  fact,  knew  it  to  be 
false,  or  made  the  as.sertion  without  knowing  wdiether  it  was 
■true  or  false,  is  wholly  immaterial.''*  But  generally,  to  charge 
the  principal  with  his  agent's  wrong,  the  special  matter  which 
constitutes  the  wrongful  act  must  have  reference  to  the  par- 
ticular subject-matter  of  the  employment,  and  fall  strictly 
within  the  scope  of  the  agent's  authority.^'-* 

It  would  seem,  however,  that  where  an  agent  innocently 
makes  a  misrepresentation  of  facts  while  effecting  a  contract 
for  his  principal,  it  will  not  amount  to  fraud  on  the  part  of  the 
principal,  though  he  is  aware  of  the  real  state  of  facts,  if  he 
was  ignorant  of  the  misrepresentaticms  being  made  and  did  not 
diiect  the  making  thereof.-^*  And  it  would  seem,  further,  that 
an  innocent  vendor  cannot  be  sued  in  tort  for  the  fraud  of  his 
agent  in  effecting  a  sale.  Tn  such  a  case  the  vendee  may 
rescind  the  contract  and  reclaim  the  money  paid,  and  if  not 


13  Coon  V.  Gurley,  49  Ind.  199.  is  Foard   v.    McComb,    12    Bush 

1*  Lansing  v.  Coleman,  58  Barb.  (Ky.)  723. 

(N.  Y.)  611.  1'-' Smith  v.  Tracy,   21   N.  Y.  79; 

IS  M.  &  M.  R.  R.  Co.  V.  Finney,  Kennedy  v.  Parke,  17  N.  J.  Eq.  415; 

10  Wis.  388.  Echols  v.  Dodd.  20  Tex.  190;  Busch 

I'i  Bennett   v.    Judson,    21    N.    Y.  v.   Wilcox,    82   Mich.   336;    Nichols 

238;  Johnson  v.  Barber,  10  111.  425.  v.  Wadsworth,  40  Minn.  547;  Cris- 
is Presley   v.    Parker,   56   N.    H.  wold  v.  Gebbie,  126  Pa.  St.  353. 

409;   Bank  v.  Gregg,  14  N.  H.  331;  20  Kelly  v.  Ins.  Co.,  3  Wis.  254; 

Haskell  v.  Starbird,  152  Mass.  117;  and  see  Davies  v.  Lyon,  36  Minn. 

but  see  Davies  v.  Lyon,  36  Minn.  427. 

427. 


273  AGENTS    AND    BROKERS. 

repaid  may  sue  tbe  vendor  for  it,  or  he  imiy  sue  the  agent  for 
deceit.21 

So,  on  tlie  other  hand,  a  principal  may  maintain  an  action 
grounded  on  fi-audulent  representations  made  to  his  agent, 
whereby  a  transfer  of  his  property  was  affected.22 

An  agent  may  be  held  responsible  for  his  fraudulent  actions 
by  any  person  in  privity  with  him  who  has  been  injured 
thereby;  and  where  the  agent  of  the  owner  of  property  makes 
representations  as  to  its  character  and  condition  which  are 
relied  on  by  the  purchaser  to  his  i^rejudice,  and  which  are  in 
fact  false  and  fraudulent,  and  unqualifiedly  made  by  such 
agent  as  of  his  own  knowledge,  the  purchaser  may  maintain 
an  action  against  him  for  damages.^^ 

§  225.  Notice  to  agent  binds  principal.  The  rule  is  general 
that  knowledge  of  the  agent  is  knowledge  of  the  jjrincipal, 
who  is  chargeable  with  notice  of  all  facts  brought  home  to  the 
agent  while  engaged  in  the  business  and  negotiations  of  the 
principal.^^  The  rule  is  based  upon  the  jninciple  that  it  is  the 
duty  of  the  agent  to  act  for  his  principal  upon  such  notice  or 
to  communicate  the  information  obtained  by  him  to  his  prin- 
cipal, so  as  to  enable  the  latter  to  act  upon  it.-^  But  to  charge 
the  principal  with  implied  notice  of  facts,  because  they  were 
known  'to  his  agent,  it  is  essential  that  the  knowledge  shall 
have  been  acquired  during  the  existence  of  the  agency,-^  and 
in  connection   with  the  business  upon   which  the  agent  is 

21  Kennedy  v.  McKay,  43  N.  J.  L.  25  Frenkel  v.  Hudson,  82  Ala. 
288.  158;  Pringle  v.  Dunn,  37  Wis.  449; 

22  Ward  V.  Barkenhagen,  50  Wis.  Hummel  v.  Bank,  75  Iowa  689. 
459.  The  rule  that  a  purchaser     is    in 

23  Clark  V.  Lovering,  37  Minn,  equity  chargeable  with  construc- 
120.  tive   notice   of   the   contents   of   a 

24  Walker  v.  Schreiber,  47  Iowa  deed  which  came  to  the  knowledge 
529;  Bank  v.  Milford,  36  Conn.  93;  of  his  agent  in  the  investigation  of 
Whitehead  v.  Wells,  29  Ark.  99;  the  title  does  not  apply  as  between 
Pringle  V.  Dunn,  37  Wis.  449;  Allen  the  vendor  and  the  purchaser;  it 
V.  Poole,  54  Miss.  323;  Meier  v.  applies  only  as  between  the  pur- 
Blume,  80  Mo.  179;  Hovey  v.  chaser  and  third  persons  having 
Blanchard,  13  N.  H.  145;  Farring-  prior  equitable  rights.  Champlin 
ton  v.  Woodward,  82  Pa.  St.  259;  v.  Laytin,  18  Wend.  (N.  Y.)  407. 
Ross  V.  Houston,  25  Miss.  591;  2c  Weiser  v.  Dennison,  10  N.  Y. 
Backman  v.  Wright,  27  Vt.  187;  68;  Pepper  v.  George,  51  Ala.  190; 
Roach  v.  Carr,  18  Kan.  529;  Taylor  Houseman  v.  Girard  Assoc,  81  Pa. 
V.  Young,  56  Mich.  285.  St.   256;    Wheeler   v.   McGuire,   86 


AGENTS    AND    BROKERS.  27*3 

engaged;-^  aii<l  jx<'ii<':allv  a  princiiial  will  not  be  affected  hy 
knowledge  communicated  to  his  agent  when  it  does  not  relate 
to  matters  which  are  connected  with  the  business  of  the  agent, 
or  whicli  are  not  within  the  scope  of  his  emplo^Ninent.-^  Nor 
does  the  rule  apply  where  the  agent  acts  for  himself  in  his 
own  interest,  and  adversely  to  that  of  the  principal,'*-' 

It  was  formerly  the  rule  in  Knglan<l  that  notice  to  an  agent, 
in  order  to  bind  his  i)rincipal  by  constructive  notice,  must  be 
in  the  same  transaction;  but  in  later  cases  this  I'lile  has  been 
very  much  modihed,  and  Air,  Justice  Bradley,  in  delivering 
the  opinion  of  the  supreme  court  of  the  United  States,"'"' 
states  the  doctrine  in  England  as  that  if  the  agent  at  the  time 
of  elfecting  a  puichase  has  knowledge  of  any  prior  lien,  trust 
or  fraud  affecting  the  property,  no  matter  when  he  acquired 
such  knowledge,  his  principal  is  affected  thereby.  If  he 
acquire  the  knowledge  when  he  effects  the  purchase,  no  ques- 
tion can  arise  as  to  his  having  it  at  that  time.  If  he  acquired  it 
previous  to  the  purchase,  the  i)resumittion  that  he  still  retains 
it  and  has  it  present  in  his  mind  will  depend  upon  facts  and 
other  circumstances.  And  the  learned  justice  concurs  in  the 
rule  as.  in  his  judgment,  the  true  one — fairly  deducible  from 
the  best  consideration  of  the  reasons  on  which  it  is  founded. 
In  some  other  American  cases  the  doctrine  that  the  knowledge 
of  an  agent  should  come  to  him  in  the  identical  transaction 
has  been  to  some  extent  modified,  and  it  has  been  held  that  it 
is  not  necessary  in  all  cases  that  the  notice  should  be  thus 


Ala.  398;  Pringle  v.  Dunn,  37  Wis.  That  he  will  very  likely  act  in  such 

449;  Day  v.  Wamsley,  33  Ind.  145;  a  case  for  himself,  rather  than  for 

Kauffman  v.  Robey,  60  Tex.  308.  his  principal;  and  (2)  he  will  not 

27  McCormick  v.  Wheeler,  36  111.  be   likely   to   communicate   to   the 

114;  Blumenthal  V.  Brainerd,  38  Vt,  principal  a  fact  which  he  is  inter- 

402;   Roach  v.  Karr,  18  Kan.  529;  ested  in  concealing.     It  would   be 

Russell  V.  Sweezey,  22  Mich.  235;  both   unjust   and   unreasonable   to 

Smith  V.  Dunton,  42  Iowa  48.  impute    notice    by    mere    construc- 

-"<  Roach  V.   Karr,   18  Kan.   529;  tion    under     such     circumstances; 

Morrison   v.   Bausemer,    32    Gratt.  and  such  is  the  established  rule  of 

(Va.)  225.  law    on    this    subject.      Frenkel    v. 

-•«  His   adversary   character   and  Hudson,  82  Ala.  158;  Wickersham 

antagonistic    interests    take     him  v.  Zinc  Co.,  18  Kan.  481. 
out  of  the  operation   of  the   gen-       so  The  Distilled  Spirits,  11  Wall, 

eral   rule,  for  two   reasons:       (1)  (U.  S.)  356. 

18 


274  AGENTS    AND    BROKERS. 

given  ;^^  but  from  all  the  cases  it  seems  that  the  farthest  that 
has  been  gone  in  the  way  of  holding  a  principal  chargeable 
with  knowledge  of  facts  communicated  to  his  agent,  where 
the  notice  was  not  received,  or  the  knowledge  obtained,  in  the 
very  'transaction  in  question,  has  been  to  hold  the  principal 
chargeable  upon  clear  proof  that  the  knowledge  which  the 
agent  once  had,  and  which  he  obtained  in  another  transaction 
at  another  time  and  for  another  principal,  was  present  to  his 
mind  at  the  very  time  of  the  transaction  in  question.^^  Where 
this  fact  is  satisfactorily  established  it  will  bind  the  principal 
as  fully  as  if  the  knowledge  in  question  had  been  originally 
acquired  by  him.^s 

The  general  rule  that  notice  of  a  fact  acquired  by  an  agent 
while  transacting  the  business  of  his  principal  operates  con- 
structively as  notice  to  the  principal  ajiplies  as  well  to  corpo- 
rations as  to  natural  persons.^^ 

§  226.  Agent  dealing  for  his  own  benefit.  An  agent  under- 
taking any  business  for  another  is  disabled  in  equity  from 
dealing  in  the  matter  of  the  agency  upon  his  own  account  or 
for  his  own  benefit;  and  if  he  does  so  in  his  own  name  he  will 
be  considered  as  holding  in  trust  for  his  principal.^^  No  rule 
obtains  a  wider  recognition  or  more  strict  enforcement;  for 
equity  requires  and  will  exact  the  utmost  fidelity  and  loyalty 
to  their  principals  from  fiduciaries  of  every  sort,  and  will  strip 
them  of  every  advantage  obtained  by  a  breach  of  trust  and 
confidence.3'5 

In  accordance  with  the  foregoing  rule  it  has  been  held  that 
an  agent  cannot  become  the  purchaser  of  property  confided  to 
his  care,37  and  that  a  purchase  made  under  such  circumstances 

31  Cragie  v.  Hadley,  99  N.  Y.  131.  Firestone  v.  Firestone,  49  Ala.  128; 

32  Constant  v.  University,  111  N.  Wilber  v.  Hough,  49  Cal.  290;  Bain 
Y.  604;  Yerger  v.  Barz,  56  Iowa  77.  v.  Brown,  56  N.  Y.  285. 

33  Savings  Bank  v.  Hollenbeck,  36  Gillen water  v.  Miller,  49  Miss. 
29  Minn.  322;  Chouteau  v.  Allen,  70  150;  Barziza  v.  Story,  39  Tex.  354; 
Mo.  290;  Hart  v.  Bank,  33  Vt.  252;  Dood  v.  Wakeman,  26  N.  J.  Eq. 
Yerger  V.  Barz,  56  Iowa  77;  Patten  484;  Rogers  v.  Locket,  28  Ark. 
v.  Ins.  Co.,  40  N.  H.  375.  290;  Conkey  v.  Bond,  36  N.  Y.  403. 

34  Reid  v.  Bank  of  Mobile,  70  Ala.  3-  Rogers  v.  Locket,  28  Ark.  290; 
199.  Prevost  v.  Gratz,  6  Wheat.  (U.  S.) 

3r.  Krutz  v.  Fisher,  8  Kan.  90;  481;  Case  v.  Carroll,  35  N.  Y.  389; 
Gillenwater  v.  Miller,  49  Miss,  150;    Harrison  v.  McHenry,  9  Ga.  164; 


AGENTS    AND    BROKERS. 


275 


carries  fraud  iipou  iLs  face.-'^  IJul  this,  pcrliaps,  is  carrying 
the  application  of  the  rule  to  extreme  lengths;  for  the  true 
si)irit  and  meaning  of  the  rule  is  that  the  agent  shall  not  so 
act  toward  the  subject  of  the  agency  for  his  own  benefit  as  to 
work  injury  to  his  principal.-'"  He  will  not,  therefore,  be 
allowed  to  purchase  where  he  has  a  duty  to  perfonn  which  is 
inconsistent  with  the  character  of  purchaser,*^^  nor  to  specu- 
late for  his  private  gain  with  the  subject-matter  ccxniniitted 
to  his  care.^i    This  may  be  regarded  as  the  true  extent  of  the 


Robertson  v.  Ins.  Co.,  19  La.  Ann. 
227;  Tilleny  v.  Wolverton.  46  Minn. 
256. 

:'•<  Rogers  v.  Locket,  28  Ark.  290; 
Cook  V.  Berlin  Mill  Co.,  43  Wis. 
433. 

•■'»  Dood  V.  Wakeman,  26  N.  J, 
Eq.  484;  Sheldon  v.  Rice,  30  Mich. 
296;  Goodwin  v.  Goodwin,  48  Ind. 
584. 

"'Grumley  v.  Webb,  44  Mo.  444; 
Blauvelt  v.  Ackerman,  20  N.  J.  Eq. 
141;  Boerum  v.  Schenck,  41  N.  Y. 
182. 

••1  Grumley  v.  Webb,  44  Mo.  444; 
Roberts  v.  Roberts,  65  N.  C.  27; 
McGowan  v.  McGowan,  48  Miss. 
553.  It  has  been  held  in  Illinois 
that  the  doctrine  that  an  agent  can- 
not, either  directly  or  indirectly, 
have  an  interest  in  the  sale  of  the 
property  of  his  principal,  which  is 
within  the  scope  of  his  agency,  ap- 
plies to  the  wife  of  an  agent  who 
purchases  the  property  with  her 
separate  estate.  The  court  says: 
"Such  a  sale,  at  common  law, 
would  clearly  have  been  voidable, 
both  because  the  wife  there  had  no 
independent  power  to  contract  and 
because  the  husband  would  have 
taken  an  estate  during  coverture  in 
the  property.  See  1  Shars.  BI. 
Comm.  441,  442;  Reeves,  Dom.  Rel. 
(2d  ed.)  98,  99,  and  also  id.  28. 
Notwithstanding  that  our  statute 
has  so   far  changed   the   common 


law  that  the  wife  can  now  contract 
with  the  husband,  and  has  abol- 
ished his  estate  during  coverture, 
it  has  not  denied  to  each  all  inter- 
est in  the  property  of  the  other. 
The  husband  is  still  the  head  of 
the  family;  and  the  expenses  of 
the  family  and  of  the  education  of 
the  chldren  are,  by  section  15  of 
the  statute  in  relation  to  husband 
and  wife,  "charged  upon  the  prop- 
erty of  both  husband  and  wife,  or 
of  either  of  them,  in  favor  of  cred- 
itors." Rev.  St.  1874,  p.  577. 
Upon  the  death  of  the  wife,  intes- 
tate, without  children  surviving, 
the  husband  inherits  one-half  of 
her  real  estate  (id.  ch.  39,  §  1); 
and,  in  any  event,  upon  her  death, 
he  is  entitled  to  dower  in  her  real 
estate.  Hence,  the  husband  still 
has  a  pecuniary  interest,  greater 
or  less,  as  circumstances  may  vary, 
in  all  the  real  estate  of  which  his 
wife  may  be  owner  during  cover- 
ture. There  is,  moreover,  apart 
from  this  pecuniary  interest,  an  in- 
timacy of  relation  and  affection  be- 
tween husband  and  wife,  and  of 
mutual  influence  of  the  one  upon 
the  other  for  their  common  wel- 
fare and  happiness,  that  is  abso- 
lutely inconsistent  with  the  idea 
that  the  husband  can  occupy  a  dis- 
interested position  as  between  his 
wife  and  a  stranger  in  a  business 
transaction.    He  may,  by  reason  of 


276  AGENTS    AND    BROKERS. 

rule;  and  an  aj^vnt  placinji;  liimself  beyond  it  may  lawfully 
contract  with  his  pi'incii)al  with  relation  to  the  property.  Yet 
a  confidential  relation,  like  principal  and  agent,  gives  cause 
for  suspicion;  and  the  circumstances  under  which  a  deed  is 
made  should  be  closely  scanned,  and  if  a  reasonable  susj)icion 
exists  that  confidence  has  been  abused  where  reposed  it  will  be 
set  aside.'*2  In  order,  therefore,  to  sustain  a  purchase  by  an 
agent  from  his  principal  of  property  which  formed  the 
subject  of  the  agency  and  to  secure  the  sanction  of  a  court  of 
equity  for  it,  the  agent  must  be  able  to  show  it  to  be  fair  and 
honest,  and  to  have  been  preceded  by  the  disclosure  of  what 
he  had  ascertained  or  discovered  concerning  its  value;  and  in 
every  case  where  the  nature  of  the  agency  has  given  the  agent 
control  in  the  management  of  the  property  and  peculiar  oppor- 
tunities for  knowing  its  condition  and  value,  a  purchase  of  it 
by  the  agent  will  be  avoided  at  the  suit  of  the  principal,  unless 
the  agent  make  it  affirmatively  appear  that  the  transaction 
was  fair,  and  that  he  imparted  all  his  information  to  the  prin- 
cipal and  acted  with  the  most  perfect  good  faith.-*^ 

But  while  the  agent  may,  under  some  circumstances,  become 
the  purchaser  of  the  property  from  the  principal,  under  no  cir- 
cumstances can  he  derive  any  advantage  from  any  other 
source.  Whatever  may  be  gained  by  him,  whether  as  the  fruit 
of  performance  or  of  violation  of  duty,  belongs  to  his  prin- 

his  great  integrity,  be  just  in  such  his  agency  without  the  knowledge 

a  transaction,  but  unless  his  mari-  and  express  consent  of  the  princi- 

tal  relations  be  perverted  he  can-  pal."     Tyler  v.   Sanborn,   136    111. 

not   feel   disinterested;    and    it   is  128.     To  the  same  effect,  Reed  v. 

precisely  because  of  this  feeling  of  Anbrey,  91  Ga.  435;  Green  v.  Hugo, 

interest  that  the  law  forbids  that  81    Tex.    452;    the    same    doctrine, 

he  shall  act  for  himself  in  a  trans-  somewhat  modified,  is  held  in  other 

action  with  his  principal.     It  is  be-  cases;   see  Winter  v.  McMillan,  87 

lieved  to  be  within  general  observa-  Cal.  256;   McNutt  v.  Dix,  83  Mich, 

tion   and   experience   that  he  who  328,  where  it  is  held  that  an  agent 

will  violate  a  trust  for  his  own  pe-  may  not  sell  to  his  wife  for  a  less 

cuniary  profit  will  not  hesitate  to  sum  than  the  property  will  bring 

do  it,  under  like  circumstances,  for  in  the  market.     And  see  Scott  v. 

the  pecuniary  profit  of  his  wife.  Gorton,  14  La.  111. 

In  our  opinion   the  policy  of  the  42  Uhlrich  v.  Muhlke,  61  111.  499. 

law  equally  prohibits  the  wife  of  -i.-s  Cook  v.  Berlin  Mill  Co.,  43  Wis. 

the    agent,    as    it    does    the    agent  433;  Brown  v.  Post,  1  Hun  (N.  Y.) 

himself,   from  taking  title   to  the  304. 
property  which   is  the  subject  of 


AGENTS    AND    BROKERS.  277 

cipal.^*  ITcncc  he  cannot,  after  diMcovcrin^  a  defect  in  the 
title  of  the  land  of  his  principal  in  the  course  of  his  agency  in 
relation  thereto,  misuse  his  discovery  to  acquire  a  title  for 
himself;^"'  nor  can  he  acquire  a  tax  title,  as  a<;ainst  his  prin 
cipal,  to  the  lands  of  the  agency.'"  So,  too,  an  a^ent  author- 
ized by  his  principal  to  sell  the  latter's  land  for  a  specified  net 
sum,  and  to  receive  for  his  services  all  above  that  sum  for 
which  he  might  sell,  is  bound  to  disclose  to  his  principal  a 
fact  in  tlie  condition  of  the  land  increasing  its  value,  which  he 
afterwar<Is  learns,  and  of  which  his  ]trincipal  was  ignorant 
when  he  tixed  the  price;  and  a  sale  by  him  on  the  basis  of  the 
sum  fixed  without  giving  such  information  is  a  fraud.^^ 

The  rule  forbidding  conflict  between  interest  and  duty  is  no 
respecter  of  persons.  It  imputes  constructive  fraud,  because 
the  temptation  to  actual  fraud  and  the  facility  for  concealing 
it  are  so  great;  and  it  imputes  it  to  all  alike  who  come  within 
its  scope,  however  much  or  however  little  open  to  suspicion  of 
actual  fraud.^^ 

The  spirit  no  less  than  the  letter  of  the  rule  not  only  pro- 
hibits direct  conveA'ances,  but  with  stronger  reason  declares 
void  a  purchase  in  an  indirect  or  circuitous  manner.  Hence, 
if  one  emi)loyed  as  an  agent  to  sell  propei-ty  arranges  with  the 
purchaser  for  an  interest  in  the  purchase,  the  sale  will  be  set 
aside  at  the  instance  of  the  principal."*^ 

The  spirit  of  the  rule  which  prohibits  the  agent  from  deal- 
ing with  the  subject  of  the  agenc}'  to  his  own  advantage 
extends  the  application  of  the  principle  to  those  w^hom  he  may 
employ  as  insti-umentalities  in  effecting  the  i)urposes  of  liis 
business.  Hence  a  clerk  or  other  person,  who,  by  his  connec- 
tion with  an  agent,  or  by  being  employed  or  concerned  in  his 
affairs,  has  accpiired  a  knowledge  of  the  ]>roperty,  labors  under 
the  same  incapacity  as  the  agent.^*^     Thus,  the  ])urchase  of 

44  Dood  V.  Wakeman,  26  N.  J.  Eq.  *»  Cook  v.  Berlin  Mill  Co.,  43  Wis, 

484.  433. 

•J"-  Rogers  v.  Locket,  28  Ark.  290.  ^o  Miller  v.  R.  R.  Co.,  83  Ala.  274; 

4«  Krutz   V.    Fisher,    8    Kan.    90.  Kramer   v.    Winslow,   130    Pa.    St. 

Unless  he  first  distinctly  notify  the  484;  and  see  Hegenmyer  v.  Marks, 

principal    that    he    renounces    the  37  Minn.  6. 

agency.     McMahon  v.  McGraw,  26  ■<<>  Coffee     v.     Ruffin,       4      Cold. 

Wis.  614.  (Tenn.)    510;    Wade  v.   Harper,   3 

47  Hegenmyer      v.      Marks,      37  Yerg.  (Tenn.)  383;  Oliver  v.  Piatt, 

Minn.  6.  3  How.  (U.  S.)  333. 


278  AGENTS    AND    BROKERS. 

land  by  the  clerk  of  u  broker  employed  to  make  a  sale  of  such 
land  will  render  the  clerk  a  trustee  for  the  vendor.^^ 

§  227.  Continued — Effect  of  laches  of  vendor.  There  is  no 
question  as  to  llic  altsolulc  intc^rily  of  the  proposition  tliat  no 
person  occupyin<>  a  relation  of  confidence  to  another  can  be 
permitted  to  purchase  the  i)r()i)erty  which  forms  tlie  subject 
of  the  coutidence  when  lie  has,  by  reason  of  such  relation,  a 
duty  to  i)erform  in  respect  to  it  which  is  inconsistent  willi  the 
character  of  a  purchaser.  But  such  a  sale  is  not  void.  At 
best  it  merely  raises  an  imputation  of  fraudulent  conduct  on 
the  part  of  the  agent  and  the  vendor,  or  those  united  with  him 
in  interest,  would  be  entitled  to  have  the  sale  set  aside  with- 
out showing  any  actual  fraud  or  injury. 

But  to  avoid  a  sale  of  this  kind  application  must  be  made 
within  a  reasonable  time,  and  unexplained  delay,  coupled  with 
other  incidents,  may  bar  the  assertion  of  the  right.  Thus,  if 
the  vendor  permits  the  holder  of  the  legal  title  to  expend  large 
sums  of  money  in  improvements,  or  to  do  any  other  acts  which 
tend  to  enhance  the  value  of  the  land,  which  he  would  not  have 
done  had  the  right  to  rescind  been  promptly  asserted,  this 
would  constitute  a  laches  sufficient  to  preclude  the  negligent 
I)arty  from  relief.  Equity  will  not  permit  a  person  entitled  to 
its  aid  to  experiment  or  speculate  at  the  risk  or  expense  of 
another,  nor  wait  until  the  future  shall  detenxiine  whether 
property  will  increase  or  decrease  in  value,  and  then  elect  to 
take  it  if  it  increases.^-  The  rule  is  more  frequently  applied 
to  sales  by  infants,  trustees,  or  ministerial  officers,  but  its 
principles  extend  equally  to  the  case  of  agents,  and  while  the 
cardinal  rule  still  holds  good  that  the  agent  cannot  become  a 
purchaser,  it  is  qualified  by  the  further  rule  that  if  he  does 
his  title  is  not  void,  but  voidable  only,  and  that  the  right  of 
avoidance  may  be  lost  by  acquiescence  or  laches. 

§  228.  The  right  to  commissions.  It  requires  no  citation  of 
authority  to  sustain  the  principle  that  w'here  a  sale  has  been 
made  and  consummated  through  the  instrumentality  of  a 
broker  or  agent,  he  is  entitled  to  whatever  commission  may 

•-^^i  Gardner    v.    Ogden,    22    N.    Y.  Bank  v.  R.  R.  Co.,  125  Mass.  490; 

349;    Beeson  v.  Beeson,  9  Pa.  284;  Cox   v.    Montgomery,    36    111.    398; 

Rosenberger's  Appeal,  26  Pa.  67.  Bliss  v.  Prichard,  67  Mo.  181. 

152  Gibson  v.  Herriott,  55  Ark.  85; 


AGENTS    AND    BROKERS. 


279 


lia\c'  Im'cu  slipLiluled  iur,  or,  in  the  ubseiict'  of  au  exprch-.s  con- 
tract, to  a  reasonable  compensation  for  his  services.  It  is  not 
cssciilial,  however,  to  fix  the  rij^lit  t(j  coniniissions  that  a  sale 
should  in  all  cases  result  from  the  agent's  ellorts — the  obliga- 
tion of  his  undertakin}.,'  is  simply  to  brinjj;  the  buyer  and  seller 
lo  an  a*^reement ;•''•'  and  this  he  fully  accomplishes  when  he  has 
produced  a  person  ready,  willing  and  able,  to  purchase  the 
property  on  the  prescribed  terms/'^  Having  thus  acquitted 
himself  of  the  only  duty  which  the  law  imjxjses  his  commis- 
sions are  regarded  as  earned;  and  the  principal  cannot  relieve 
himself  from  liability  therefor  by  a  capricious  refusal  to  con- 
summate the  sale,"-"'  or  by  a  voluntary  act  of  his  own  disabling 
him  from  perfonnance."'"  So,  also,  if  after  the  agent  has  pro- 
duced an  acceptable  purchaser,  and  the  contract  has  been 
signed,  the  latter  refuses  to  complete  the  agreement  on 
account  of  fraud  or  misrepresentation  on  the  part  of  the 
ovvner'^^  or  for  defects  in  the  title,'^'^  the  right  to  compensation 


''■'•  Sibbald  v.  Bethlehem  Iron 
Co.,  83  N.  Y.  378;  Knapp  v.  Wal- 
lace, 41  N.  Y.  477;  Hinds  v.  Henry, 
36  N.  J.  L.  328. 

•"'^  Wylie  V.  Marine  Bank,  61  N.  Y. 
415;  Tombs  v.  Alexander,  101  Mass. 
255;  Phelan  v.  Gardner,  43  Cal. 
306;  Bell  v.  Kaiser,  50  Mo.  150; 
Edwards  v.  Goldsmith,  16  Pa.  St. 
43;  Jones  v.  Adler,  34  Md.  440; 
Hamlin  v.  Schulte,  34  Minn.  534; 
Vinton  v.  Baldwin,  88  Ind.  104;  De 
Laplaine  v.  Turnley,  44  Wis.  31; 
Hoyt  V.  Shipherd,  70  111.  309;  Leete 
V.  Norton,  43  Conn.  219;  Bucking- 
ham V.  Harris,  10  Colo.  455;  Wil- 
son V.  Mason,  158  111.  304;  Gelatt 
V.  Ridge,  117  Mo.  553;  Coleman  v. 
Meade,  13  Bush  (Ky.)  358;  Kim- 
berly  v.  Henderson,  29  Md.  512; 
Hinds  V.  Henry,  36  N.  J.  L.  328. 

•>^  De  Laplaine  v.  Turnley,  44 
Wis.  31;  Stewart  v.  Murray,  92 
Ind.  543;  Moses  v.  Burling,  31  N.  Y. 
462;  Phelan  v.  Gardner,  43  Cal. 
306;  Tyler  v.  Pars,  52  Mo.  249; 
Greenwood  v.  Burton,  27  Neb.  808; 


O'Brien  v.  Gilleland,  79  Tex.  602. 

■'"  Reed's  Executors  v.  Reed,  82 
Pa.  St.  420;  Lane  v.  Albright,  49 
Ind.  275;  Nesbit  v.  Helser,  49  Mo. 
383;  Campbell  v.  Thomas,  87  Cal. 
428;  Hannon  v.  Moran,  71  Mich. 
261;  Ward  v.  Cobb,  148  Mass.  518; 
Francis  v.  Baker,  45  Minn.  83. 

■•'  Glentworth  v.  Luther,  21  Barb. 
(N.  Y.)  145. 

ss  Knapp  V.  Wallace,  41  N.  Y. 
477;  Love  v.  Miller,  53  Ind.  294; 
Pearson  v.  Mason,  120  Mass.  53; 
Leete  v.  Norton,  43  Conn.  295; 
Sayre  v.  Wilson,  86  Ala.  151;  Par- 
ker V.  Walker,  86  Tenn.  566.  It 
has  been  held,  however,  that  where 
a  purchaser  refuses  to  complete  a 
sale  of  real  estate  on  a  flimsy  ob- 
jection to  the  title,  and  the  broker 
has  failed  to  reduce  the  contract 
to  writing  so  that  no  action  for  a 
specific  performance  will  lie,  the 
broker  is  not  entitled  to  his  com- 
missions from  the  owner.  Gil- 
christ v.  Clarke  (Tenn.),  8  S.  W. 
Rep.  572. 


280  AGENTS    AND    BROKERS. 

will  still  remain  unimpaired,^^  provided  the  agent  himself  is 
without  faiilt.*'^  A{i,ain,  after  negotiations  begun  through  a 
broker's  intervention  have  virtually  culminated  in  a  sale,  he 
cannot  be  discharged  so  as  to  deprive  him  of  his  commissions; 
and  if  it  be  satisfactorily  shown  that  the  broker  was  the  pro- 
curing cause  of  the  sale  he  will  be  awarded  compensation  not- 
withstanding such  discharge/'^  The  provisions  of  the  contract 
of  agency  may  var}-  these  rules,  as,  if  the  contract  provides  in 
tenns  that  a  commission  shall  be  paid  only  on  the  consumma- 
tion of  a  sale,  and  the  principal,  on  reasonable  grounds, 
declines  to  complete  same,  the  right  to  compensation  may  not 
accrue.^- 

§  229.  Continued — Agent  must  produce  actual  purchaser. 
It  has  been  held  that  before  an  agent  or  broker  can  recover  his 
commissions,  where  the  sale  has  not  been  consummated,  it 
must  appear  that  the  proposed  purchaser  was  of  sufficient 
pecuniary  ability  to  have  consummated  the  purchase;  that  it 
is  not  enough  that  the  person  procured  by  the  agent  either 
offered  or  actually  entered  into  a  contract  of  purchase,  if  he 
was  not  able  to  comply  with  his  contract,''^  particularly  if  the 
vendor  in  accepting  him  as  such  a  purchaser  did  not  rely  upon 
his  own  judgment  but  rather  upon  that  of  the  agent.  Indeed 
the  production  by  the  agent  of  a  person  as  purchaser  has 
been  held  to  be  an  implied  representation  on  his  i)art,  that 
such  person  is  financially  able,  as  w'ell  as  ready  and  willing  to 
complete  the  purchase.^*  Of  the  justness  of  this  rule  there  can 
be  no  question  and  it  has  received  a  general  acquiescence 
w^henever  invoked.*^^    There  is,  however,  a  marked  difference 

59  Cook  V.  Fiske,  12  Gray  (Mass.)  Cal.  306;  Bell  v.  Kaiser,  50  Mo.  150; 
491;     Desmond    v.     Stebbins,    140  Lyon  v.  Mitchell,  36  N.  Y.  235. 
Mass.  339;  Duclos  v.  Cunningham,  62  Flower  v.  Davidson,  44  Minn. 
102  N.   Y.   678;    Edwards  v.   Gold-  46;    but  see   Smith   v.    Schiele,   93 
smith,  16  Pa.  St.  43.  Cal.  144. 

60  As  where  the  broker  knew  the  cs  Coleman  v.  Meade,  13  Bush, 
title  was  defective.  Tombs  v.  (Ky.)  358;  Kimberly  v.  Hender- 
Alexander,  101  Mass.  255;  Barthell  son,  29  Md.  512;  Hinds  v.  Henry,  36 
V.  Peter,  88  Wis.  316.  N.  J.  L.  328. 

61  Attrill   v.   Patterson,     58    Md.  64  Butler  v.  Baker,  17  R.  I.  582. 
226;    Keys  v.   Johnson,   68  Pa.   St.  65  Duclos  v.  Cunningham,  102  N. 
42;    Vreeland  v.  Vetterlein,   33   N.  Y.  678;  Kimberly  v.  Henderson,  29 
J.    L.    247;    Goss    v.    Steavens,    32  Md.  512. 

Minn.  472;    Phelan  v.  Gardner,   43 


AGENTS    AND    BROKERS.  281 

of  opinion  as  to  who  shall  snslain  ilii-  h\)r(h-n  of  pioof  in  show- 
ing the  financial  ability  of  the  proposed  purchaser.  One  line 
of  cases  liolds  that  the  burden  is  on  the  agent  or  broker 
suing  for  his  coinniissions,  upon  the  ground  that  it  is  a  part  of 
his  undertaking  to  produce  a  person  able  to  respond  to  the 
linancial  demands  of  the  contract.""  On  the  other  hand  there 
are  cases  which  hold  with  equal  directness  that  it  is  to  be 
presumed,  until  the  contrary  appears,  tliat  the  jierson  jtro- 
duced  is  solvent  and  jtecuniarily  able  to  make  the  purchase, 
and  hence,  that  the  burden  of  showing  inability  rests  on  the 
defendant."'  Under  this  line  of  decisions  the  plaintilf  makes  a 
prima  facie  case  when  he  proves  the  introduction  by  him  to 
the  vendor  of  a  jjcrson  willing  to  purcluise  on  the  terms  at 
which  the  agent  was  authorized  to  sell.  It  would  seem  as 
though  tlie  fonner  rule  is  founded  on  the  better  reason  and  is 
more  in  consonance  with  the  principles  of  natural  justice, 
while  the  latter  is,  to  a  large  extent,  technical  and  arbitrary. 

§  230.  Continued — Sale  must  result  from  broker's  efforts. 
In  all  cases  where  a  sale  has  been  ell'ected,  however,  in  order 
to  fix  the  broker's  rights,  it  must  have  been  the  direct  result 
of  his  exertions.  This  seems  to  be  the  indispensable  condition 
to  a  right  of  recovery  on  his  part;  but,  in  regard  to  tlie  extent 
or  character  of  such  exertions,  there  is  no  fixed  standard  or 
rule  of  measurement.  Indeed,  it  would  seem  that  any  effort, 
however  sliglit,  which  actually  operatinl  to  induce  the  vendee 
to  purchase  would  be  sutticient  to  entitle  the  broker  to  remun- 
eration."^    On  the  other  hand,  if  the  services  of  the  broker, 

66  iselin  V.  Griffith,  62  Iowa  668;  chases  it  from  the  owner  directly. 
Zeidler  v.  Walker,  41  Mo.  App.  118;  the  broker  must  be  regarded  as  the 
Butler  V.  Baker,  17  R.  I.  582;  Leahy  procuring  cause  of  the  sale,  and 
V.  Hair,  33  111.  App.  461.  therefore   entitled   to   his  commis- 

67  Cook  V.  Kroemeke,  4  Daly  sion,  even  though  he  may  have  had 
(N.  Y.)  268;  Grosse  v.  Cooley,  43  no  personal  intercourse  or  dealing 
Minn.  188.  with    the    purchaser.      Lincoln    v. 

o"*  Pope  v.  Beals,  108  Mass.  561;  McClatchie,  36  Conn.  136;  and  see 

Jones  V.  Adler,  34  Md.  440;  Bell  v.  Sussdorff  v.  Schmidt,  55  N.  Y.  320; 

Kaiser,  50  Mo.  150;   Lloyd  v.  Mat-  Carter  v.  Webster,     79     111.     435; 

thews,  51  N.  Y.  124.       Thus,  if  a  Earp  v.  Cummins,  54  Pa.  St.  394— 

real  estate  broker  communicate  in-  all  of  which  sustain   the  doctrine 

formation    regarding    property    in  of  the  text.    Whenever  the  broker 

his  hands  to  one  who  reports  it  to  is  the  "procuring  cause"  the  right 

a    friend,    who    subsequently   pur-  to  commissions  becomes  fixed — as 


282 


AGENTS    AND    BROKERS. 


liowevt^r  arduous,  have  failed  in  the  accomplishment  of  a  sale 
in  the  first  instance,  and  as  a  result  the  negotiations  have  been 
definitely  abandoned,  notwithstandinji;  other  and  supervening 
influences  may  have  evenlually  induced  the  vendee  to  recon- 
sider his  resolution  and  make  the  purchase,  the  broker  will 
not  be  able  to  claim  commissions."'*  This,  however,  must  be 
taken  with  one  important  and  necessary  limitation;  if  the 
efforts  of  the  broker  are  rendered  a  failure  by  the  fault  of  the 
employer  then  he  may  still  claim  commissions,  upon  the  famil- 
iar principle  that  no  one  can  avail  himself  of  the  non-perform- 
ance of  a  condition  precedent  who  has  himself  occasioned  its 
non-performance.  But  this  limitation  is  not  even  an  excep- 
tion to  the  general  rule  affecting  the  broker's  right;  for  it 
goes  on  the  ground  that  the  broker  has  done  his  duty,  and 
that  he  has  brought  buyer  and  seller  to  an  agreement;  but  that 


where  a  broker  advertised  property 
at  his  own  expense  and  a  third  per- 
son seeing  it  directed  a  purchaser 
to  the  owner.  Anderson  v.  Cox,  16 
Neb.  10;  but  see  Charlton  v.  Wood, 
11  Heisk.  (Tenn.)  19.  So,  also, 
where  a  purchaser  attracted  to  the 
property  by  the  broker's  signs,  ad- 
vertisements, etc.,  opens  negotia- 
tions with  the  owner  dii'ect.  Suss- 
dorff  V.  Schmidt,  55  N.  Y.  319.  If 
the  broker  simply  introduces  a  pur- 
chaser and  through  such  introduc- 
tion the  owner  personally  effects  a 
sale  afterward  the  right  to  com- 
missions will,  it  seems,  accrue  to 
the  broker.  Scott  v.  Patterson,  53 
Ark.  49.  It  must  be  understood, 
however,  that  in  all  such  cases  the 
broker  must  be  under  due  employ- 
ment by  the  owner.  Hanford  v. 
Shapter,  4  Daly  (N.  Y.)  243. 

G'J  Earp  V.  Cummins,  54  Pa.  St. 
394;  Lipe  v.  Ludewick,  14  111.  App. 
372;  Livezey  v.  Miller,  61  Md.  226; 
Wylie  v.  Marine  Bank,  61  N.  Y. 
415.  As  remarked  by  the  court  in 
Sibbald  v.  Iron  Co.,  83  N.  Y.  378: 
"The  risk  of  failure  is  wholly  his. 
The  reward  comes  only  with  suc- 


cess. That  is  the  plain  contract 
and  contemplation  of  the  parties. 
The  broker  may  devote  his  time 
and  labor  and  expend  his  money 
with  ever  so  much  of  devotion  to 
the  interests  of  his  employer,  and 
yet  if  he  fails,  if,  without  effecting 
an  agreement  or  accomplishing  a 
bargain,  he  abandons  the  effort,  or 
his  authority  is  fairly  and  in  good 
faith  terminated,  he  gains  no  right 
to  commissions.  He  loses  the  labor 
and  effort  which  was  staked  upon 
success;  and  in  such  event  it  mat- 
ters not  that,  after  his  failure  and 
the  termination  of  his  agency, 
what  he  has  done  proves  of  use  and 
benefit  to  the  principal.  In  a  mul- 
titude of  cases  this  must  necessar- 
ily result.  He  may  have  introduced 
to  each  other  parties  who  otherwise 
would  have  never  met;  he  may 
have  created  impressions  which, 
under  later  and  more  favorable 
circumstances,  naturally  lead  to 
and  materially  assist  in  the  con- 
summation of  a  sale;  he  may  have 
planted  the  very  seeds  from  which 
others  reap  the  harvest — but  all 
that  gives  him  no  claim.     It  was 


AGENTS    AND    BROKERS.  283 

the  contract  is  not  consmnmatcd  and  fails  through  the  after- 
fault  of  the  seller.70 

Nor  is  it  necessary,  to  entitle  the  broker  to  his  commissions, 
that  the  contract  negotiated  by  him  should  be  enforceable  in 
hiw,  provided  the  purchaser  remains  willing  to  comply  witli 
same  and  such  comi)liance  is  prevented  by  the  refusal  of  the 
owner  to  receive  the  purchase  price  and  make  conveyance.  If, 
in  fact,  the  broker  was  authorized  to  negotiate  the  sale  the 
further  fact  that  the  purchaser  could  not  have  been  compelled 
to  carry  out  the  contract  had  he  chosen  to  set  up  the  statute  of 
frauds,  is  immaterial,  if,  through  the  owner's  fault,  the  sale 
was  not  consummated  J^ 

As  a  further  recpiisite  to  enable  a  broker  to  recover  com- 
missions he  must  have  been  expressly  employed  or  authorized 
by  his  iH'incipal  to  conduct  the  necessary  negotiations,  or  such 
must  be  inferred  as  an  implication  of  law  from  the  fact  that 
the  principal  subsequently  avails  himself  of  the  broker's  serv- 
icesJ2  If  tiie  vendor  refuses  to  employ  the  broker,  the  mere 
fact  that  he  sends  a  customer  who  eventually  buys  will  not 
entitle  him  to  compensation."'* 

If  by  a  special  contract  the  broker  is  not  to  receive  any 
compensation  unless  the  property  is  sold  at  a  stated  price,  he 
is  not  entitled  to  commissions  unless  the  projieity  is  sold  at 
that  price,  or  unless  he  produces  a  purchaser  who  is  willing  to 
pay  it."^  So,  too,  an  agent  must  act  within  the  terms  of  his 
authority  and  a  substantial  variance  therefrom  will  defeat  his 
right  to  compensation,''^  but  the  mere  fact  that  the  broker  has 
agreed  with  a  purchaser  to  sell  land  on  dillerent  tenns  from 

part  of  his  risk  that,  failing  him-  Redfield   v.   Tegg,    38    N.   Y.    212. 

self,  not  successful  in  fulfilling  his  Leaving  a  description  of  property 

obligation,  others  might  be  left  to  with  a  real  estate  broker,  accom- 

some  extent  to  avail  themselves  of  panied  by  a  request  to  sell  at  cer- 

the  fruit  of  his  labors."  tain  terms  and  for  a  certain  price, 

70  Sibbald  v.  Iron  Co.,  83  N.  Y.  is  a  sufficient  contract  of  employ- 
378.  ment.     Long  v.  Herr,  10  Colo.  380. 

71  Holden  v.  Starks,  159  Mass.  73  Atwater  v.  Lockwood,  39  Conn. 
503;  Gelatt  v.  Ridge,  117  Mo.  553;  45. 

Kalley  v.  Baker,  132  N.  Y.  1.  i*  Schwartze   v.    Yearly,   31    Md. 

72  Atwater  v.  Lockwood,  39  Conn.  270;  Briggs  v.  Rowe,  1  Abb.  (N.Y.) 
45;  Hinds  v.  Henry.  36  N.  J.  L.  328;     App.  Dec.  189. 

Twelfth  Co.  v.  Jackson,  102  Pa.  St.        75  Nesbit  v.  Helser,  49  Mo.  383. 
296;    Canby  v.   Frick,  8   Md.   163; 


284  AGENTS    AND    BROKERS. 

those  contained  in  his  instructions  will  not  uflect  his  rights  if 
the  principal  subsequently  ratifies  the  agreement;  for  such 
ratification  will  be  held  equivalent  to  prior  authority,  and  the 
princii)al  will  be  bound  for  (he  amount  of  commissions  agreed 
uponJ*'  And,  in  like  manner,  where  the  terms  of  the  sale  are 
fixed  by  the  vendor  in  accordance  with  which  the  broker 
undertakes  to  produce  a  purchaser,  yet  if,  upon  the  procure- 
ment of  the  broker,  a  purchaser  comes  with  whom  the  vendor 
negotiates,  and  thereupon  voluntarily  reduces  the  price  of  the 
property,  or  the  quantity,  or  otherwise  changes  the  terms  of 
sale  as  proposed  to  the  broker,  so  that  a  sale  is  consummated, 
or  terms  or  conditions  are  offered  which  the  proposed  buyer 
is  ready  and  willing  to  accept,  then,  in  either  case  the  broker 
will  be  entitled  to  his  commission  at  the  rate  specified  in  his 
agreement  with  his  principal.'^''' 

§  231.  Continued — Where  more  than  one  broker  is  employed. 
Where  several  brokers  are  avowedly  employed,  the  entire  duty 
of  the  vendor  is  performed  by  remaining  neutral  between 
them,  and  he  will  have  the  right  to  make  the  sale  to  a  bu^'er 
produced  by  any  of  them  without  being  called  upon  to  decide 
between  the  several  agents  as  to  which  of  them  was  the  prim- 
ary cause  of  the  purchase.'''^  So,  also,  if  a  broker  who  first 
procures  a  purchaser  reports  his  offers  to  his  principal  with- 
out identifj'ing  the  person  from  whom  they  came,  he  can- 
not recover  commissions,  in  case  of  a  subsequent  sale  through 
another  broker  at  the  same  price  to  the  same  purchaser,  unless 
it  appears  in  evidence  tliat  the  vendor  knew  this  fact,  or  that 
notice  was  given  him  by  the  agent  before  the  completion  of 
the  contract  and  payment  of  commissions  to  the  second  broker. 
If  there  be  but  one  broker  employed  he  can  with  safety  with- 
hold the  name  of  the  purcliaser  until  the  sale  shall  have  been 
made;  but  as  the  emplo^Tuent  of  one  broker  does  not  preclude 
the  emplojTuent  of  another  to  procure  a  purchaser  for  the 
same  property,  it  becomes  the  duty  of  the  broker  who  pro- 
ve Woods  v.  Stephens,  46  Mo.  556;  378;  Reynolds  v.  Tompkins,  23  W. 
Gelatt  V.  Ridge,  117  Mo.  553.  Va.  229. 

T7  Stewart  v.  Matlier,  32  Wis.  ts  Vreeland  v.  Vetterlein,  33  N.  J. 
344;  Woods  v.  Stephens,  46  Mo.  L.  247.  But  where  the  owner  em- 
555;  see  also  Fisher  v.  Ball,  91  Ind.  ploys  several  brokers,  he  is  bound 
243;  Lockwood  v.  Rose,  125  Ind.  to  pay  the  one  who  does  in  fact  ef- 
588;   Sibbald  v.  Iron  Co.,  83  N.  Y.    feet  the  sale,  and  cannot  exercise 


AGENTS    AND    BROKERS.  285' 

cures  one,  and  who  looks  to  the  sccurily  of  Iuh  conmiissioiiH, 
to  report  the  name  and  ollVp  (o  liis  i)riii(ipal  that  the  hiltci- 
may  be  nolificd  in  lime,  and  tlins  put  njton  liis  ^Miaid  Ix'forc  he 
pays  the  commissions  (o  oil  her.""  The  forei^oin;^  principles 
are  in  full  accoi-dance  willi  ^ood  Imsiness  melliods,  and  are 
such  as  are  ^cnei'ally  accejiled  in  real  estate  ti-ausactions. 

A  more  ditlicult  (juestion  is  jiicsenled  where  several  brokers 
have  each  endeavored  to  bi-inj^  about  a  sale,  which  is  tinally 
consummated,  and  each  has  contribute<l  sometlnn<^  toward 
the  result.  The  j,'eneral  rule  is  that  where  two  or  more  brokers 
are  employed  there  is  no  implied  contract  to  pay  more  than 
one  commission,  and  the  (pieslion  then  arises  as  to  which  one 
of  several  claimants  shall  be  entitled  to  receive  same.  Keason- 
ing  by  principle,  as  well  as  by  analogy  to  other  branches  of 
the  law,  it  would  seem  that  where  there  are  a  number  of  dif- 
ferent causes  which  assist  in  producing  a  specific  result,  and 
where  such  result  would  not  have  occurred  if  either  one  of 
the  different  causes  had  been  wanting,  then  such  result  must 
he  referred  to  the  "predominating  ellicient  cause,"  as  one 
■writer  concisely  puts  it,^*^  and  applying  this  doctrine  to  the 
question  under  consideration  the  broker  whose  efforts  were 
the  real  ellicient  or  effective  means  of  concluding  the  sale  must 
be  preferred.si 

Another  phase  of  the  subject  is  presented  where  several 
brokers  are  each  acting  independently  with  respect  to  the  sub- 
ject-matter and  in  several  instances  a  somewhat  different  rule 
from  that  above  given  has  been  announced.  Thus,  upon  the 
principle  that  until  the  authority  given  to  a  broker  has  been 
revoked  and  notice  of  such  fact  communicated  to  him,  his 
agency  continues,  it  has  been  held  that,  where  more  than  one 
broker  has  been  employed,  each  will  have  a  right  to  find  a 
purchaser  and  earn  a  commission.^^  There  would  be  no  injus- 
tice in  this,  however,  if  knowledge  of  the  employment  of  the 

his  option.     Eggleston   v.   Austin,  Burrows,   33   Mich.   6;    Behling  v. 
27  Kan.  245;   Whitcomb  v.  Bacon,  Pipe  Lines.  160  Pa.  St.  359. 
170  Mass.  479.  «^  See  Bash  v.   Hill,  62   111.   216. 
70  Tinges  v.  Moale,  25  Md.  480;  In  Fox  v.  Rouse,  47  Mich.  558,  the 
and   see   Dowling   v.   Morrill,   165  plaintiff  had  been  employed  by  de- 
Mass.  491.  fendant  to  effect  a  sale.    He  found 
«o  Phil.  Ins.  §  1132.  a   purchaser   who   was   ready  and 
SI  Whitcomb  v.  Bacon,  170  Mass.  willing  and  able  to  take  the  land 
479;    see  also  M.  C.  R.   R.  Co.  v.  upon  the  terms  prescribed.     It  de- 


286  AGENTS    AND   BROKERS. 

different  agents  were  kept  from  them;  or  if,  when  the  prop- 
erty has  been  sold,  the  unsuccessful  broker  is  not  notified  of 
that  fact,  for  where  a  party  engages  the  services  of  another  to 
assist  him  in  making  a  trade  of  property,  if  he  desires  to  dis- 
pense with  such  services  he  should  give  the  other  party  notice; 
if  he  does  not,  and  the  service  is  rendered,  he  will  be  required 
to  pay  for  the  same.^^ 

§  232.  Continued — Sale  by  owner  without  broker's  inter- 
ference. A  person  who  has  employed  a  broker  to  sell  his  lands 
may,  notwithstanding,  negotiate  a  sale  himself;  and  if  he 
does  so  without  any  agency  or  participation  of  the  broker, 
he  will  not  be  liable  to  him  for  commissions.^^  The  same  rule 
obtains  even  where  the  broker  has  introduced  a  person  with 
whom  he  has  been  negotiating,  where  such  negotiations  have 
afterward  been  abandoned,  and  the  principal  without  assist- 
ance from  the  broker  subsequently  completes  the  transac- 
tion,**^ But,  as  a  rule,  where  a  broker  introduces  a  purchaser, 
and  as  a  result  of  such  introduction  a  sale  is  effected,  the 
broker  will  be  entitled  to  commissions  notwithstanding  that 
the  owner  negotiates  the  sale  himself.  The  broker,  in  such 
case,  must  be  regarded  as  the  "procuring  cause."  So,  too, 
where  a  broker  who  is  employed  to  sell  property  at  a  given 
price  and  for  an  agreed  commission  has  opened  a  negotiation 
with  a  purchaser,  and  the  principal,  without  terminating  the 
agency  or  the  negotiation  so  commenced,  takes  it  into  his  own 
hands  and  concludes  a  sale  for  a  less  sum  than  the  price  fixed, 
the  broker  is  entitled  at  least  to  a  ratable  portion  of  the  agreed 
commission.86  The  mere  fact,  however,  that  a  broker  inter- 
vened between  the  parties  to  a  negotiation  which  was  orig- 
inally  commenced    and    finally    consummated    without    his 

veloped  that  the  land  had  been  sold  Armstrong  v.  Wann,  29  Minn.  126; 

by    another    agent    similarly    em-  Hungerford    v.    Hicks,     39     Conn, 

ployed  by  the  plaintiff.    Held,  that  259. 

the  plaintiff  could  recover.  ss  Wylie  v.  Marine  Bank,  61  N.  Y. 

S3  Bash  V.  Hill,  62  111.  216.  415;  Weinhouse  v.  Cronin,  68  Conn. 


84  Dolan  V.  Scanlan,  57  Cal.  261 
Dubois  V.  Dubois,  54  Iowa  216 
Stewart  v.  Murray,  92  Ind.  543 
McClave  v.  Paine,  49  N.  Y.  561 
Tombs  V.  Alexander,  101  Mass.  255 
Keys  V.   Johnson,   68   Pa.   St.   42 


250. 

8G  Martin  v.  Silliman,  53  N.  Y. 
615;  Stewart  v.  Mather,  32  Wis. 
344;  Woodsv.  Stephens,  46  Mo.  555; 
compare  Childs  v.  Ptomey,  17  Mont. 
502. 


AGENTS    AND    BROKERS.  287 

agency,  and  b\'  his  conversation  with  tliiid  persons  or  other- 
wise contributed  to  its  consninniatiou,  does  not  entitle  him  to 
commissions  when  a  sale  at  the  price  fixed  as  the  condition 
of  his  employment  was  not  effected,  and  he  was  not  prevented 
by  his  employer  from  etfectinj;  a  sale  at  that  price.'*'^ 

It  has  been  held,  where  the  owner  of  land  agreed  with  a 
broker  that  he  would  i)ay  him  a  certain  amount  if  he  would 
find  a  purchaser  within  a  specified  time  who  would  pay  a  cer- 
tain price  for  the  estate,  that  if  within  such  time  the  broker 
procured  such  i)urchaser,  he  was  entitled  to  recover  his  com- 
mission, though  the  owner  sold  the  property  before  the  broker 
found  a  purchaser.*^^ 

As  a  general  rule,  where  land  is  sold  through  the  instru- 
mentality' of  a  broker  employed  by  the  owner,  he  is  entitled 
to  his  commission,  although  the  owner  himself  negotiates 
the  sale,  and  even  though  the  purchaser  is  not  introduced  to 
the  owner  by  the  broker,  and  the  latter  is  not  personally 
acquainted  with  the  purchaser;**^  and  in  every  case  where  a 
broker  who  has  been  employed  to  sell  introduces  a  purchaser 
to  the  owner,  and  through  such  introduction  negotiations  are 
begun  and  a  sale  of  the  property  is  finally  effected,  the  broker 
is  entitled  to  commissions,  although  in  point  of  fact  the  sale 
may  have  been  made  b^-  the  owner.*^*^  It  would  seem,  however, 
that  the  mere  fact  of  directing  the  purchaser's  attention  to  the 
land  is  not  sufficient  to  entitle  the  broker  to  commissions 
when  he  fails  to  disclose  the  owner's  name  and  the  purchaser 
afterwards  learns,  through  other  sources,  who  the  ow^ner  is 
and  purchases  directly  from  him,  the  owner  having  no  knowl- 
edge of  the  broker's  connection  with  the  case.^^  This  seems 
reasonable  and  in  consonance  with  natural  justice,  yet  the 

87  Briggs  V.  Rowe,  1  Abb.  App,  contract:.  And  see  Vinton  v.  Bald- 
Dec.  (N.  Y.)  189.  win,  95  Ind.  433. 

s8  Lane  v.  Albright.  49  Ind.  275.  «"  Sussdorff  v.  Schmidt,  55  N.  Y. 

In  this  case  the  owner  was  held  to  319. 

be  liable  for  commissions  because  oo  Jones   v.   Adler,    34    Md.    440; 

he  had  deprived  the  broker  of  the  Woods   v.    Stephens,   46   Mo.   555; 

power  to  earn  them,  and  that  in  Hafner  v.   Herron,    165    111.    242; 

order  to   claim    commissions    the  Bash  v.  Hill,  62  111.  216;  Lloyd  v. 

broker   was   not   required   to   pro-  Matthews,   51  N.  Y.   124;    Lyon  v. 

duce  a  purchaser  within  the  speci-  Mitchell,  36  N.  Y.  235. 

fied  time,  as  the  owner  had  put  it  f"  Anderson  v.  Smythe,  Colo.  Dec. 

beyond  his  power  to  complete  the  91. 


288  AGENTS    AND    BROKERS. 

question  of  "procuring  cause"  is  not  altogether  well  settled 
and  tliere  are  cases  wliicli  seem  to  militate  against  this  posi- 
tiou.'»2 

233.  Continued — Failure  to  close  within  time  stipulated. 
It  would  seem  that  if  an  agent  for  the  sale  of  land  is  limited 
as  to  the  time  within  which  to  earn  his  commissions  the  sale 
must  be  effected  within  such  limited  time,  and  that  he  cannot 
recover  otherwise,*^^  although  one  whom  he  introduced  to  the 
owner  afterwards  becomes  the  purchaser  of  the  land;^*  yet 
where  the  agent,  within  the  period  fixed  by  the  contract,  has 
so  negotiated  a  sale  in  such  a  manner  that  success  is  practic- 
aUy  certain  and  immediate  a  different  rule  might,  and  prob- 
ably would,  apply .^^ 

Where  the  broker  is  allowed  a  "reasonable  time"  the  cir- 
cumstances must  furnish  the  grounds  for  determination  f^  and 
where  no  time  is  stipulated  for  the  continuance  of  the  contract 
either  party  is  at  liberty  to  terminate  it  at  will,  subject  only 
to  the  ordinary  requirements  of  good  faith.^^  In  such  event, 
if  negotiations  are  then  pending  it  seems  commissions  may  be 
recovered  if  the  sale  is  afterwards  consummated.^^  Where  the 
broker  has  been  allowed  a  reasonable  time  to  procure  a  pur- 
chaser and  effect  a  sale  and  has  failed  to  do  so,  and  the  prin- 
cipal in  good  faith  has  terminated  the  agency  and  sought  other 
assistance  by  means  of  which  a  sale  is  consummated,  the  fact 
that  the  purchaser  is  one  whom  the  broker  introduced,  and 

92  See  §  230  ante.  summated  within  nine  months  or 

93  Wright  v.  Beach,  82  Mich.  469.    not. 

94Fultz  V.  Wimer,  34  Kan.  576;  as  Blumenthal  v.  Goodall,  89  Cal. 

Beauchamp  V.  Higgins,  20  Mo.  App.  251;    and   see   Williams  v.   Leslie, 

514.     But  see   Williams  v.  Leslie,  111  Ind.  70. 

Ill  Ind.  70,  where  an  agency  to  sell  ne  Thus,  a  contract  to  sell  in  a 
a  tract  of  land  was  limited  to  nine  "short  time"  was  held  to  be  ful- 
months,  but  the  contract  provided  filled  by  procuring  a  customer 
that  if  a  customer  should  be  intro-  within  two  weeks.  Smith  v.  Fair- 
duced  by  the  agent  during  the  time  child,  7  Colo.  510.  Twenty-two 
to  whom  the  principal  should  sell  days  was  held  to  fill  the  require- 
afterward  the  agent  should  be  en-  ment  that  a  sale  should  be  made 
titled  to  his  commission.  Held  within  a  "reasonable  time."  Lane 
that,  by  the  terms  of  the  contract,  v.  Albright,  49  Ind.  275. 
the  agent  was  entitled  to  compensa-  97  Sibbald  v.  Iron  Co.,  83  N.  Y. 
tion,  whether  the  sale  to  the  cus-  378. 
tomer  introduced  by  him  was  con-  98  Knox  v.  Parker,  2  Wash.  34. 


AGENTS    AND    BROKERS.  289 

tliat  tho  sale  was  in  sour*  degree  aided  \>y  his  previous  iinsuc- 
fessfiil  efforts,  does  not  give  him  a  right  to  commissions."'' 
Xeitlier  can  commissions  be  chiimed  wlien  a  customer  is  pre- 
sented after  the  j)rincipal  has  withdrawn  his  off«*r  to  sell.* 

§  234.  Continued — Revocation  of  broker's  authority.  As  a 
general  rule  an  owner  may  always  recall  the  authority  he 
may  have  given  to  a  broker,  and  this  notwithstanding  the 
broker  may  have  expended  time,  labor  and  money  in  endeav- 
oring to  effect  a  sale.  The  mere  authorization  to  offer  lands 
for  sale,  even  though  accompanied  by  an  express  promise  to 
pay  a  stipulated  compensation  in  case  a  sale  is  effected,  does 
not,  in  any  proper  sense,  constitute  a  contract.  It  purports  to 
be  nothing  more  than  an  unilateral  agreement,  is  made  with- 
out consideration,  and  lacks  the  important  element  of  mutual- 
it3'  of  obligation.  At  best,  it  is  nothing  more  than  a  present, 
but  revocable,  grant  of  authority  to  sell,  and  the  mere  giving 
and  receiving  of  such  a  grant  creates  no  contractual  relation 
between  the  j)arties.  So  long  as  the  power  remains  unexe- 
cuted by  the  broker  it  may,  at  his  pleasure,  be  recalled  by  the 
owner,  and  the  broker  will  be  without  remedy.^ 

§  235.  Continued — Sale  by  unlicensed  broker.  The  right  of 
every  person  to  pursue  any  lawful  business,  occupation  or 
profession,  is  subject  to  the  paramount  right  inherent  in  every 
government,  as  a  part  of  its  police  power,  to  impose  such 
restrictions  and  regulations  as  the  protection  of  the  public 
may  require.^  This  power  is  most  frequently  invoked  to  reg- 
ulate the  practice  of  those  professions  where  special  skill  and 
knowledge  are  required  and  which  directly  affect  the  health, 
property  or  morals  of  the  people.  The  primary  object  of  these 
laws  is  to  protect  the  public  and  to  regulate  the  practice  of 
particular  professions  and  while  a  fee  is  usually  exacted  for 
a  certificate  to  the  licentiate  the  matter  of  revenue  is  only  inci- 
dental. There  has  never  been  any  serious  dispute  as  to  the 
absolute  right  of  the  state  to  impose  such  restrictions  and 
regulations  as  ma}'  be  found  necessary  for  the  protection  of 
the  health,  morals,  and  safety  of  society  and  to  prohibit  the 

»9  Sibbald  v.   Iron  Co.,  83  N.  Y.  Minn.  11,  for  an  interesting  illus- 

378.  tration  of  the  doctrine  of  the  text. 

1  Young  V.  Tranor,  158  111.  428.  =' State    v.    Noyes.    47    Me.    189; 

2  See    Stensgaard    v.    Smith,    43  State  v.  Randolph,  23  Ore.  74. 

19 


290  AGENTS    AND    BROKERS. 

exercise  of  the  riglit  to  practice  by  those  who  neglect  to  com- 
ply with  the  regulations. 

But  there  are  many  occupations  which  may  be  pursued  by 
any  person  without  detriment  or  danger  to  the  public  welfare 
and  therefore  need  no  regulations  to  control  them,  and  in  this 
category  we  may  easily  place  a  real  estate  agent  or  broker. 
Such  business  may  properly  be  carried  on  by  any  person.  It 
has  been  held,  however,  that  the  legislature,  in  authorizing 
the  imposition  of  license  fees  is  not  restricted  to  any  x)articular 
class  of  trades  or  occupations,^  and  it  is  fundamental  that 
where  a  statute  makes  a  particular  business  or  occupation 
unlawful  for  unlicensed  persons  a  contract  made  in  the  course 
of  such  business  is  unenforceable  and  without  legal  effect.^ 
The  occupation  of  brokerage  has  ever  been  held  to  be  the  sub- 
ject of  regulation  under  the  police  power  of  the  state,  and 
license  fees  imposed  upon  this  class  of  traders  are  regarded 
as  a  proper  exercise  of  the  power.^ 

In  many  of  the  decisions,  where  the  question  as  to  the  right 
of  an  unlicensed  broker  to  recover  commissions  on  sales  made 
through  his  instrumentality  has  arisen,  the  special  law  under 
consideration  has  been  the  internal  revenue  acts  of  the  United 
States;  but  the  principles  involved  in  such  cases  are,  in  a  large 
measure,  inapplicable  to  state  laws  and  local  municipal  regu- 
lations. The  fact  that  an  agent  had  taken  out  no  license  under 
a  former  internal  revenue  law  of  the  United  States  was  held 
not  to  affect  his  right  to  recover  compensation.  The  sole 
object  of  that  law  was  to  raise  revenue;  and  the  question  in 
such  cases  is  whether  the  statute  was  intended  as  a  protection 
or  merely  as  a  fiscal  expedient — whether  the  legislature 
intended  to  prohibit  the  act  unless  done  by  a  qualified  person 
or  merely  that  the  person  who  did  it  should  pay  a  license  fee. 
If  the  latter  the  act  is  not  illegal,''^  and  the  revenue  laws  will 
not  affect  his  right  to  recover  upon  an  express  contract  for 
fixed  compensation.^  On  the  other  hand,  if  the  statute  or  ordi- 
nance is  intended  to  regulate  the  business  of  brokerage,  a  con- 
trary rule  would  apply;  and  unless  the  broker,  in  the  event  of 

4  Braun  v.  Chicago,  110  111.  186.  Johnson   v.    Hulings,    103    Pa.    St. 

n  Eckert   v.    Collet,    46    111.    App.  498. 

361;  Buckley  V.  Humason,  50  Minn.  7  Ruckman  v.  Bergholz,  37  N.  J. 

195.  L.  437. 

0  Braun  v.  Chicago,  110  111.  186;  'Woodward  v.  Stearns,  10  Abb. 


AGENTS    AND    BROKERS.  291 

such  a  rej^ulatiou,  lias  comijlicd  uilh  tin-  lau  ami  hceii  diilv 
licensed  to  pursue  such  a  calling;  lie  cannot  iccover  coniniis- 
sions  by  a  Ie<ial  action.^  And  fuilluM-,  in  order  to  eflcct  a 
recovery  it  is  necessary  that  the  broker  be  licensed  at  the  time 
the  commissions  are  claimed  to  have  been  earned.  That  he  is 
licensed  at  the  time  suit  is  brought  is  not  sufTicient."* 

vi  236.  Continued — Agent  as  purchaser.  The  jjeneral  sub- 
ject of  jmrchases  by  agi'uts  has  been  reviewed  in  a  fore.noinj^ 
paraj^raph,  where  it  was  shown  that  an  aj?ent  to  whom  prop- 
erty has  been  intrusted  for  sale  cannot  himself  become  the 
purchaser  except  under  peculiar  conditions.''  The  only 
inquiry  pertinent  at  this  time  is  with  resj)ect  to  the  rij^lit  of  an 
agent  to  ask  and  receive  commissions  where,  instead  of  tinding 
a  third  party  who  is  willing  to  or  does  purchase,  he,  himself, 
becomes  the  purchaser.  There  would  seem  to  be  no  good  rea- 
son, either  in  law  or  morals,  for  a  denial  to  him  of  this  priv- 
ilege. The  agreement  of  the  vendor  is  to  \mx  commissions 
when  the  agent  shall  have  procured  a  purchaser  able  and  will- 
ing to  take  the  property  at  the  price  proposed,  and  usually  it  is 
immaterial  to  the  vendor  who  the  purchaser  is.  And  even  if 
the  agent  is  to  find  a  purchaser  who  will  pay  for  it  the  best 
price  attainable,  if  thti  vendor  agrees  upon  a  price  at  which  he 
is  willing  to  sell,  and  there  is  no  fraud,  concealment  or  mis- 
representation on  the  part  of  the  agent,  he  should  not  be  dis- 
tinguishable, so  far  as  respects  the  payment  of  commissions, 
if  instead  of  presenting  a  third  party  he  offers  himself. 

The  question  does  not  seem  to  have  been  raised  to  any 
extent  in  the  reported  cases.  A  diligent  search  has  failed  to 
reveal  anything  that  militates  against  these  views;  while  it 
does  appear  that,  so  far  as  they  have  been  presented,  they 
have  received  the  sanction  of  the  courts.  Thus,  it  has  been 
held  that  a  broker  who  engages  for  a  commission  to  find  a 
purchaser  of  land  at  such  price  as  may  be  agreed  upon  betwetMi 
such  purchaser  and  the  vendor,  and  then  becomes  himself  ihc 
purchaser,  in  whole  or  in  part,  the  vendor  accepting  him  as 

Pr.  (N.  Y.)  N.  S.  395;  Pope  v.  C.  430;  Buckley  v.  Humason.  50 
Beats,  108  Mass.  561.  Minn.  195. 

n  Johnson  v.  Hulings.  103  Pa.  St.  lo  Eckert  v.  Collot,  46  111.  App 
498;   McConnell  v.  Kitchens,  20  S.    361. 

11  See  sec.  226  atite. 


292  AGENTS    AND    BROKERS. 

such,  may  recover  tlie  commission  upon  clear  proof  that  such 
was  the  understanding  upon  the  part  of  the  vendor  at  the  time 
of  the  sak'.i2 

§  237.  Sale  hy  agent  above  stipulated  price.  It  is  no  uncom- 
mon thing  for  owners  to  place  property  in  the  hands  of  brokers 
with  a  stipulation  that  same  shall  he  sold  so  as  to  net  to  the 
owner  a  fixed  sum,  the  broker  to  retain  as  his  compensation 
whatever  amount  may  be  realized  above  the  price  named. 
While  this  excess  is  usually  called  "commissions"  it  does  not 
come  within  the  usual  legal  definitions  of  the  term  and  the 
relation  thus  created  between  the  parties  more  resembles  that 
of  vendor  and  purchaser  than  that  of  principal  and  agent.  In 
matters  relating  to  personalty  this  is  the  view  now  invariably 
adopted  by  the  courts  where  the  property  has  passed  into  the 
possession  or  custody  of  the  agent,  and  while  these  conditions 
do  not  usually  exist  where  the  subject-matter  is  real  property, 
the  principle  nevertheless  applies  in  a  modified  form.  Where 
such  a  stipulation  has  been  entered  into  it  has  been  held  that 
any  sale  agreed  to  be  made  by  the  agent  must  be  regarded 
as  having  been  made  by  him  in  the  capacity  of  a  vendor,  and 
not  on  account  of  the  land-owner.  Hence,  he  would  have  a 
right  to  make  the  sale  upon  any  terms  he  might  deem  most 
advantageous;  he  might  sell  either  for  cash  or  on  time  and 
with  such  conditions  annexed  as  he  might  see  fit  to  impose. 
The  land-owner  would,  of  course,  be  entitled  to  the  immediate 
payment  of  the  stipulated  price,  but  this  would  practically  be 
the  extent  of  his  rights.  And  in  case  the  sale,  for  any  reason, 
should  fail,  it  seems  the  land-owner  could  not  claim  the  deposit 
as  a  forfeit.i^ 

While  the  general  doctrine  above  set  forth  has  long  been 
recognized  in  commercial  transactions  concerning  chattels,  it 
does  not  seem  to  have  come  within  the  purview  of  courts  to 
any  extent  with  respect  to  real  property,  and  while  the  con- 
clusions above  stated  are  believed  to  be  sound  and  in  conson- 
ance with  the  received  rules  of  law  as  applied  to  sales  gener- 

12  Grant  v.  Hardy,  33  Wis.  668.  is  See  Robinson  v.  Eaton,  93  Cal. 

And  the  fact  that,  in  effecting  the  80.     This  is  the  leading,  and  pos- 

sale,  the  broker  has  acted  in  fraud  sibly  the  only,  case  upon  the  sub- 

of    his    co-purchaser,    will    not   af-  ject. 
feet  his  right  to  the  commission  as 
against  the  vendor.    Ibid. 


AGENTS    AND    BROKERS.  203 

ally,  the  subject  may  yet  be  said  to  be  (inc  of  doiibl,  1o  be 
definitely  ascertained  and  settled  in  tlic  future. 

>!  238.  Double  agency.  The  undertakin}^  as  well  as  the  duty 
of  an  a^cnl  is  lo  proiuole,  by  all  lawful  measures,  (he  interests 
of  his  principal.  Hence,  it  becomes  the  duty  of  an  a^^ent  for 
the  vendor  to  sell  the  properly  at  the  hi<,'hes(  attainable  price; 
of  the  ag;ent  for  the  purchaser,  lo  buy  it  for  the  lowest.  These 
duties  are  so  utterly  irreconcilable  and  conflicting  that  they 
cannot  be  performed  by  the  same  person  witlumt  great  danger 
that  the  rights  of  one  principal  will  be  sacrificed  to  jiromote 
the  interests  of  the  other,  or  that  neither  of  them  will  enjoy 
the  benefit  of  a  discreet  and  faithful  exercise  of  the  trust 
reposed  in  the  agent.^^  For  this  reason  it  has  invariably  been 
held  that  an  agent  cannot  recover  for  services  rendered  while 
holding  such  entirely  incompatible  relations,^'"'  unless,  indeed, 
it  clearly  appears  that  both  vendor  and  vendee  had  full  knowl- 
edge of  all  the  circumstances  and  assented  to  the  double 
emplo}inent.^*'  The  justness  of  the  rule  is  apparent,  and  its 
soundness  has  never  been  questioned;  it  is  a  rule  of  public 
I)olicy,  founded  upon  the  frailties  of  human  nature,  and  it 
matters  not  that  no  fraud  may  have  been  meditated  and  no 
injury  done,  for  it  is  not  intended  to  be  remedial  of  actual 
wrong,  but  rather  a  preventative  of  the  possibility  of  it.^''' 

But  while  the  rule  may  be  considered  as  established  beyond 
controversy,  it  has  an  exception,  equally  well  established,  that 
an  agent  nuiy  be  employed  by  and  recover  from  both  parties 
as  a  mere  "middle-man"  to  bring  them  together.^  ^  When 
this  has  been  accomplished  his  duty  is  performed,  and  to  his 

14  Farnsworth     v.     Hemmer,     1  Barry    v.    Schmidt,    57    Wis.    172; 

Allen   (Mass.)    494;    Webb  v.  Pax-  and  see  Vinton  v.  Baldwin.  88  Ind. 

ton,  36  Minn.  532.  104;  Rowe  v.  Stevens,  53  N.  Y.  621. 

ir.  Walker    v.    Osgood,    98    Mass.  A  custom  among  brokers  that  they 

348;    Stewart  v.   Mather,   32   Wis.  are  entitled  to  a  commission  from 

344;   Raisin  v.  Clark,  41  Md.  158;  each    party    is    invalid    as   against 

Bollman  v.  Loomis,  41  Conn.  581;  public   policy,   and   cannot  be   sus- 

Everhart  v.  Soarlc,  71  Pa.  St.  256;  tained  by  the  courts.     Raisin     v. 

Lynch   v.   Fallon.     11     R.   I.   311;  Clark,  41  Md.  158. 

Scribner  v.  Collan,  40   Mich.  375;  i^Rice  v.  Davis,  136  Pa.  St  439. 

Lloyd    V.    Colston.    5    Bush    (Ky.)  is  Stewart    v.    Mather.    32    Wis. 

587;  Bell  v.  McConnell.  37  Ohio  St.  344;    Rupp  v.  Sampson.    16    Gray 

396.  (Mass.)    398;   Rowe  v.  Stevens,  53 

16  Bell  V.  McConnell,  37  Ohio  St.  N.  Y.   621;    Montross  v.  Eddy,   94 

396;  Rice  v.  Wood,  113  Mass.  133;  Mich.  100. 


29-i  AGENTS    AND    BROKERS. 

case  the  policy  of  the  hiw  which  excludes  double  compensa- 
tion has  been  considered  inapplicable.  It  has  been  held  that 
this  will  be  the  case  even  where  each  of  the  principals  was 
ignorant  of  his  emploj'nient  by  the  other.^'^ 

The  rule  and  the  exception  are  well  established  both  by 
reason  and  authority.  When  an  agent  is  emploj'ed  by  one 
party  to  sell  and  by  the  other  to  purchase,  and  is  vested  with 
any  discretion  or  judgment  in  the  negotiation,  his  duties  are 
in  conflict  and  in  respect  to  adverse  interests,  and  he  cannot 
fairly  serve  both  i)arties.  This  adverse  interest  of  the  parties, 
and  this  conflicting  and  inconsistent  duty  of  the  agent,  forms 
the  basis  of  the  rule;  and  the  exception  is  founded  upon  the 
absence  of  this  adverse  interest  of  the  parties  and  upon  the 
concurrence  of  the  duty  of  the  agent  toward  both  jmrties  alike; 
as  where  the  price  is  fixed  by  the  vendor,  and  merely  accepted 
by  the  purchaser  through  the  procurement  of  the  agent,  or 
where  no  terms  are  fixed  by  the  vendor  or  authorized  by  him 
to  be  fixed  by  the  agent,  and  the  agent  acts  as  the  mere  middle- 
man to  bring  the  j^arties  together  for  a  negotiation  and  con- 
tract to  be  made  by  themselves-^*^ 

Again,  there  is  nothing  inconsistent  with  the  rule  as  stated, 
in  permitting  two  persons  who  desire  to  negotiate  an  exchange 
or  a  bargain  and  sale  of  property  to  agree  to  delegate  to  a  third 
person  in  whose  judgment  and  discretion  they  mutualh'  repose 
confidence  the  duty  of  fixing  terms  or  arranging  for  a  jirice. 
Such  agent  may  not,  indeed,  be  able  to  serve  each  of  his  prin- 
cipals with  all  his  skill  and  energy;  nor  obtain  for  his  vendor 
principal  the  highest  price  which  might  be  obtained,  or  for 
the  purchaser  the  lowest  price  at  which  the  land  might  be 
bought;  3'et  he  may  still  be  able  to  render  to  each  a  sei-vice 
entirely  free  from  falsehood  and  fraud,  and  in  which  his  best 
judgment  and  soundest  discretion  are  fully  exercised.  In  such 
case  such  service  is  all  that  either  of  his  principals  contracted 
for;  and  when  this  is  done,  and  free  assent  given  by  each 
principal  to  the  double  relation,  the  right  of  the  agent  to 
compensation  cannot  be  denied  on  any  just  principle  of  morals 
or  of  law.2i 

i9Ranney  v.  Donovan,  78  Mich.  Rupp  v.  Sampson,  16  Gray  (Mass.) 

318.  398;    Walker   v.   Osgood,    98   Mass. 

zoQrton  v.  Scofield,  61  Wis.  382;  348;  Cox  v.  Haun,  127  Ind.  325. 

Barry    v.    Schimdt,    57    Wis.    172;  21  Bell  v.  McConnell,  37  Ohio  St, 

Bell  V.  McConnell,  37  Ohio  St.  396;  396;  and  see  Alexander  v.  Univer- 


AGENTS    AND    BROKERS.  29o 

Within  the  forcjiuiii;^  I'Xicplicnis  a  ii'iuvery  may  be*  hud  by 
an  agent  I'luni  either  or  both  of  lii«  prineiiiais,  lie  having  acted 
with  their  full  luiow  ledge  and  c-ouseiit;  yet  the  preeept  Indds 
iMjuaily  good  in  law  as  in  morals  that  no  servant  can  serve 
two  masters,  and  any  attempt  so  to  do  withont  the  full  knowl- 
edge and  free  couseut  of  both  i)arties  is  not  to  be  tolerated. 
Unless  the  jirincijial  contracts  for  less,  the  agent  is  bonud  to 
serve  him  wiih  all  his  skill,  judgment  and  discretion;  and 
this  duty  he  cannot  divide  and  give  part  to  another.  By  engag- 
ing with  a  second  he  forfeits  his  right  to  compensation  from 
the  one  who  first  employed  him,  and  for  the  same  reason  he 
cannot  recover  from  the  second  employer  who  is  ignorant  of 
the  first  engagement.  Nor  will  the  fact  that  the  second 
employer  has  knowledge  of  the  first  engagement  materially 
alter  the  case;  for  then  both  he  and  the  agent  are  guilty  of 
the  wrong  committed  against  the  first  employer,  and  the  law 
will  not  enforce  an  executory  contract  entered  into  in  violation 
of  his  rights.  Neither  is  it  any  answer  to  say  that  the  second 
employer,  having  knowledge  of  the  first  employment,  should 
be  held  liable  on  his  promise  because  he  could  not  be  defrauded 
by  the  transaction;  for  the  contract  itself  is  void  as  against 
public  policy  and  good  morals,  and  both  parties  thereto  being 
171  pari  delicto  the  law  will  leave  them  as  it  finds  them.22 

^  239.  The  measure  of  compensation.  Usually  where  ])arties 
stipulate  for  the  services  of  an  agent  or  broker  in  the  purchase 
or  sale  of  real  estate,  the  com})ensation  which  is  to  be  i)aid  for 
such  service  is  also  fixed  by  mutual  agreement;  and,  in  the 
absence  of  any  other  controlling  circumstances,  such  agree- 
ment will  form  the  basis  of  the  amount  which  the  agent  shall 
be  entitled  to  receive.  Where  no  such  arrangement  has  been 
made,  a  well-established  and  uniform  custom  or  usage  may 
be  relied  n])()n  as  a  ])ro])er  criterion  for  fixing  the  value ;--^  and 

sity,  57  Ind.  466;   Joslin  v.  Cowee,  long  established  and  so  well  known 

56  N.  Y.  626;  Fitzsimmons  v.  S.  W.  as  to  acquire  the  force  of  law,  un- 

Ex.  Co.,  40  Ga.  330;  Adams  Mining  contradictory    and    distinct.      The 

Co.  V.  Senter,  26  Mich.  73.  rule  applied   in  a  case  where  the 

'•2-  1   Bell   V.  McConnell,   37   Ohio  evidence  was  held  not  sufficient  to 

St.  396;    Rice  v.  Wood,  113  Mass.  support  a  custom  to  pay  brokers' 

133.  commissions,    where   the   sale   was 

2't  A   custom,   to   vary   a   settled  effected    through    the    instrumen- 

rule  of   law,   must  be   reasonable,  tality  of  another.     Pratt  v.  Bank, 


29G 


AGENTS    AND    BROKERS. 


ill  the  absence  of  such  imifoi'iu  custom  or  usage,  the  measure 
of  the  broker's  compensation  should  be  the  value  of  the  ser- 
vices rendered,  to  be  ascertained  as  in  other  cases  of  einploy- 
meut.-^ 

J:;  240.  Sub-agents — Delegation  of  authority.  The  general 
rule  of  law  is  that  a  delegated  power  cannot  be  delegated; 
therefore  an  agent  has  no  right  to  transfer  his  authority  to  a 
sub-agent  v^^ithout  the  consent  of  his  piincipal.  If,  in  the 
absence  of  such  consent,  he  does  delegate  his  authority,  the 
sub-agent  whom  he  appoints  will  be  regarded  as  his  agent  and 
not  the  agent  of  the  principal  ;-■''  and  if  an  agent  in  the  con- 
duct of  his  agency  employs  a  sub-agent  without  authority  to 
bind  his  principal,  either  expressly  given  or  fairly  presumptive 
from  the  particular  circumstances  or  the  usage  of  the  busi- 
ness, the  sub-agent  must  look  to  his  immediate  employer  for 
his  pay,  and  has  no  claim  for  compensation  against  the  agent's 
principal,  between  whom  and  the  sub-agent  no  privity  exists.^^ 


12  Phil.  (Pa.)  387.  Usage  is  not 
readily  adopted  by  the  courts; 
therefore  the  proof  of  usage  must 
be  clear  and  explicit,  and  the  usage 
so  well  established,  uniform  and 
notorious  that  parties  may  be  pre- 
sumed to  have  known  it,  and  con- 
tracted in  reference  to  it.  Hall  v. 
Storrs,  7  Wis.  253.  It  being  the  es- 
tablished usage  of  land  agents  in 
Milwaukee  to  charge  and  receive 
three  per  cent  of  the  amount  of  the 
purchase  money  on  sales  effected 
through  their  agency,  held,  in  a 
suit  brought  by  P.,  a  land  agent 
there,  against  K.  for  the  three  per 
cent,  to  which  he  claimed  to  be  en- 
titled according  to  such  usage, 
where  K.  had  employed  him  to  sell 
certain  lands  for  him  at  a  certain 
price,  and  P.  found  a  person  ready 
and  willing  to  purchase  the  lands 
on  K.'s  terms,  but  K.  refused  to 
sell,  that  P.  was  not  entitled  to 
recover  on  such  implied  contract 
until   the  consummation     of     the 


sale,  and  it  made  no  difference 
whether  the  sale  was  prevented  by 
K.  himself  or  the  want  of  a  pur- 
chaser; whether  P.  could  recover 
on  a  quantum  vieruit,  guere. 
Power  v.  Kane,  5  Wis.  265. 

24  Potts  V.  Aechternacht,  93  Pa. 
St.  138. 

25  Davis  V.  King,  66  Conn.  465 
Wright  V.  Boynton,  37  N.  H.  9 
Connor  v.  Parker,  114  Mass.  331 
Loomis  V.  Simpson,  13  Iowa  532. 

26  A  special  agent  acting  simply 
by  virtue  of  a  power  of  attorney  to 
sell  and  convey  certain  real  estate 
cannot  employ  a  bioker  to  procure 
a  purchaser  and  negotiate  a  sale, 
so  as  to  raise  a  privity  between  his 
principal  and  the  broker,  and  give 
the  latter  a  right  of  action  for  his 
compensation  directly  against  his 
principal.  Jenkins  v.  Funk,  33 
Fed.  Rep.  915;  and  see  Hand  v. 
Conger,  71  Wis.  292;  Corbett  v. 
Schumacker,  83  111.  403. 


CHArTER    VTTT. 


SALES    BY    AUCTION. 


t  240.     Generally.  §  250. 

241.  The  sale.  251. 

242.  Sales  without  reserve.  252. 

243.  Particulars  and  conditions 

of  sale.  253. 

244.  Sale  by  plat.  254. 

245.  Auctioneer's     relations     to 

the  parties.  255. 

246.  Auctioneer  cannot  delegate 

authority.  256. 

247.  Withdrawing  bid.  257. 

248.  Refusing  bid. 

249.  Auctioneers'         statements 

and  representations. 


Puffers  and  by-bidders. 

Vendor  as  bidder. 

Combinations  among  bid- 
ders. 

Auctioneer's   memorandum. 

Who  may  make  the  memo- 
randum. 

Auctioneer's  receipt  as 
memorandum. 

The  deposit. 

Refusal  to  comply  with  bid 
— Resale. 


§  240.  Generally.  An  auction  is  generally  defined  as  a  com- 
petitive sale  at  which  the  highest  bidder  becomes  the  pur- 
chaser. As  a  mode  of  sale  it  is  of  very  great  antiquity,^  and, 
in  some  cases,  is  the  only  method  of  disposition  which  the  law 
permits.  Real  property  is  very  often  sold  at  auction,  not  only 
in  pursuance  of  the  judgment  or  decree  of  some  legal  tribunal 
and  as  the  result  of  some  proceeding  theretofore  had,  but  also 
by  the  mere  volition  of  the  vendor.  It  is  a  method  frequently 
resorted  to  as  a  means  of  inaugurating  settlements  in  sparsely- 
populated  districts,  opening  new  subdivisions  adjacent  to 
cities,  or  for  the  more  speedy  disposal  of  i)roperty  in  any 
locality,  or  with  a  view  to  an  increased  jjiice  by  reason  of 
competitive  bidding. 


1  The  Romans  had  their  auctions, 
outcries,  and  port  sales,  which 
were  performed  by  the  public  crier, 
and  called  sub  hasta,  from  their 
being  in  early  times  the  sale  of  the 
spoils  taken  in  war,  and  a  spear 
being  erected  as  the  signal  of  the 
auction.  The  same  signal  was  aft- 
erwards used  in  other  sales,  which 
were  made  under  the  superintend- 
ence   of    particular    tribunals.      It 


was  termed  audio,  q.  d.  increase 
because  the  goods  were  sold  to  him 
qui  plurimum  rem  augerit,  who 
bids  most  for  them.  A  spear  was 
fixed  in  the  Forum,  by  which  stood 
a  crier,  who  proclaimed  the  arti- 
cles intended  to  be  sold.  A  cata- 
logue was  made  in  tables  called 
auctionariae.  The  seller  was  called 
auctor,  and  the  bidders  sectores, 
who    signified    their    biddings    by 


297 


298  SALES    BY    AUCTION. 

lu  all  its  essential  features  au  auction  sale  differs  in  no 
respect  from  a  sale  made  through  private  negotiation,  and 
consists  only  of  au  invitation  for  proposals,  an  offer  and  an 
acceptance.  The  same  rules  that  apply  in  the  one  case  are  of 
equal  force  in  the  other;  the  only  difference  lies  in  the  method, 
and  this  has  called  forth  a  few  rules  which  it  is  proposed  to 
brielly  discuss  in  this  chapter. 

§  241.  The  sale.  A  sale  by  auction  may  be  made  on  the 
premises  or  at  any  other  place  desi<;iuited  in  the  notice  thereof, 
and  must  be  conducted  fairl}'  and  honestly.  The  terais  and 
conditions  must  be  made  known  before  the  biddings  have 
commenced,  and  in  ordinary  cases  the  auctioneer  will  have 
the  right  to  prescribe  the  rules  of  bidding  and  the  terms  of 
sale;  provided  he  does  not  contravene  the  written  particulars 
and  conditions,  if  there  are  any.  When  the  biddings  have 
once  commenced  they  should  be  continued  as  long  as  any 
person  will  increase  upon  the  previous  bidding. 

§  242.  Sales  "without  reserve."  It  is  not  an  uncommon 
practice  to  announce  a  sale  "without  reserve;"  and  while  this 
would  probably  be  implied  by  law  where  no  reservation  was 
made  by  the  vendor,  yet  when  so  stated  it  has  the  effect  of 
creating  an  express  contract  between  the  vendor  and  the  high- 
est bona  fide  bidder  that  the  sale  shall  be  so  conducted.^  If 
under  these  circumstances  a  bid  is  made  by  or  on  behalf  of 
the  vendor,  he  thereby  becomes  responsible  in  damages  to  the 
highest  bidder  for  a  breach  of  the  conditions  of  sale,  or  the 
sale  may  be  avoided  at  the  option  of  sucli  purchaser.^ 

§  243.  Particulars  and  conditions  of  sale.  In  every  sale  of 
real  property  at  public  vendue  there  should  first  be  prepared 
a  notice  of  sale  which,  as  a  rule,  should  describe  the  property 
to  be  sold,  and  state  the  time,  place,  and  terms  of  sale.  In  all 
judicial  and  execution  sales  this  is  an  indispensable  require- 

lifting  up  their  fingers.    The  high-  2  The    term     "without    reserve" 

est  bidder  became  the  purchaser,  is  understood  to  exclude  all  inter- 

and  the  term    auctoritas    denoted  ference  by  the  vendor  or  those  com- 

the   right  of   property,    which   the  ing  in  under  him  with  the  right  of 

sale  vested  in  the  purchaser.     The  the  public  to  have  the  property  at 

phrase  suh  hasta  venire     (literally,  the  highest  bidding. 

to  be  sold  under  the  spear),  there-  :' Flannery  v.  Jones,  180  Pa.  St. 

fore,    denoted    a   sale    by   auction.  338. 
Bateman,  Auctions,  1. 


SALES    BY    AUCTION.  299 

incut  aud  in  private  sali's  its  ('iiuivalcnt  slionld  be  rcpresc^nted 
in  some  manner.  The  i»ariicular.s  of  sale  hiMoinc  a  part  <jf  tin- 
contract,  they  cannot  be  varied  by  verbal  ileclarations  of  tli«' 
auctioneer  at  the  time  of  the  .sale,  aud  are  usually  to  be  con- 
strued strictly  aj^ainst   the  Ncndor. 

§244.  Sale  by  plat.  Where,  at  an  auction  sale  of  real  pi-op- 
erty,  the  lots  are  delineated  upon  a  plan  or  i)lat  which  is 
exhibited  to  bidders  and  to  which  bidders  are  referred,  such 
reference  is  the  assertion  of  a  positive  fact,  which,  if  niateiial. 
enters  into  the  consideration,  and  if  false  is  a  <fround  of  relief 
where  its  falsity  was  unknown  to  the  puichaser,  and  he  has 
taken  no  covenant  to  protect  himself.  The  plat  is  an  evidence 
of  the  existence  and  location  of  streets,  etc.,  and  if  referred 
to  in  the  deed  of  conveyance  becomes  a  material  and  essential 
part  thereof.  The  representation  of  streets,  alleys,  etc.,  upon 
a  plat  is  a  positive  atYirmation  that  such  exist,  and  upon  which 
purchasers  have  a  rij;ht  to  rely.  The  untruth  of  such  repre- 
sentations cannot  in  many  cases  be  readily  discovered,  even 
hy  the  exercise  of  ordinary  diligence;  and  as  he  who  sells 
property  by  a  description  given  by  himself  is  bound  to  make 
that  description  good,  so  a  vendor  who  at  a  sale  by  public 
auction  misleads  and  injures  the  purchaser,  even  though  there 
is  an  absence  of  wilful  fraud  on  his  part,  must  nevertheless 
remain  liable  for  any  injury  caused  by  his  incorrect  repre- 
sentation.^ 

§  245.  Auctioneer's  relation  to  the  parties.  An  auctioneer 
is  essentially  an  agent,  and  his  contract  is  that  of  agency. 
Until  the  fall  of  the  hammer  he  is  exclusively  the  agent  of  the 
vendor,  but  after  this  he  becomes  the  agent  of  the  purchaser 

*  As  where  a  master  and  commis-  street  was  on  his  neighbor's  land, 
sioners  in  partition  divided  a  dece-  He  sold  lots  at  auction  according  to 
dent's  land  and  laid  out  a  street  the  plat  which  was  exhibited  on  the 
bounding  on  the  line  of  an  adjoin-  day  of  sale.  The  plat  of  the  com- 
ing landholder.  Afterwards,  but  missioners  was  afterward  set  aside 
before  the  partition  was  put  on  rec-  and  the  street  vacated.  Held,  that 
ord  or  the  .street  opened,  the  latter  the  vendor  was  liable  for  damages 
laid  out  I  town  plat,  which  was  to  a  vendee  of  lots  for 'diminution 
lithograpnod.  It  exhibited  the  in  the  value  thereof  caused  by  the 
street,  with  streets  on  his  own  plat  non-existence  of  the  vacated  street, 
opening  into  it;  but  the  f-olUr  sive  McCall  v.  Davis,  56  Pa.  St.  431. 
no  information  that  the  first-named 


300  SALES    BY   AUCTION. 

as  well,  and  his  memorandum  of  the  transaction  binds  both 
parties.'^  The  position  of  an  auctioneer  differs  in  some  respects, 
however,  from  tliat  of  an  ordinary  ajjjent;  and  where  the 
subject  of  the  sale  is  land  it  has  been  said  that,  by  reason  of 
his  right  to  bring  an  action  and  of  his  liability  to  account  for 
the  deposit,  he  can  be  nuide  a  co-plaintiff  with  the  vendor  in 
an  action  for  specific  performance,  and  he  is  not  infrequently 
made  a  co-defendant  in  such  an  action/'  He  may  sue  in  his 
own  name  upon  evidences  of  debt  that  may  have  been  given 
to  him  in  payment  of  the  dejjosit;'^  and,  as  a  necessai'y  incident 
of  his  power  to  sell,  nmy  receive  and  receipt  for  so  much  of  the 
purchase  monej'  as  is  paid  down  at  the  time  of  sale.^ 

As  between  himself  and  the  vendor  his  agency  is  general, 
and  whatever  acts  are  usually  performed  by  auctioneers  or 
whatever  rights  are  ordinarily  exercised  by  them  are  deemed 
incidents  to  his  authority;  and,  in  like  manner,  whatever 
duties  ordinarily  attach  to  the  office  are  deemed  imposed  upon 
him.  He  is  subject,  nevertheless,  to  the  special  instructions 
of  his  principal;  and  his  rights  and  duties  under  his  general 
agency  are  further  subject,  as  regards  third  persons,  to  their 
having  notice  of  such  special  instructions.  After  the  fall  of 
the  hammer  he  becomes  the  mutual  agent  of  both  vendor  and 
vendee,  and  his  action  is  competent  to  bind  both  parties  to  the 
sale.^ 

The  foregoing  remarks  apply,  however,  only  where  the 
auctioneer  would  be  a  competent  agent  in  any  other  species 
of  land  sale.  His  agency  as  an  auctioneer  is  not  essentially 
different  from  agency  in  general,  and  is  governed  practically 

5  White  V.  Crew,  16  Ga.  416;  Mor-  text  have  ever  been  taken  and  ac- 
ton V.  Dean,  13  Met.  (Mass.)  397;  cepted  as  true  with  regard  to  sales 
Harvey  v.  Stevens,  43  Vt.  653;  of  chattels  there  has  been  some  di- 
O'Donnell  v.  Leeman,  43  Me.  158;  versity  of  opinion  in  respect  to 
Doty  v.  Wilder,  15  111.  410;  Gill  v.  sales  of  realty,  and  in  some  in- 
Hewitt,  7  Bush  (Ky.)  13;  Walker  stances  contrary  conclusions  have 
V.  Herring,  21  Gratt.  (Va.)  678.  been  reached.     The     later     cases, 

c  See  Bateman  on  Auctions,  211.  however,    adopt    and    declare    the 

7  Thompson  v.  Kelly,  101  Mass.  doctrine  of  the  text;  and  there  does 
291.  not   seem   to   be   any  good   reason 

«  Goodale  v.  Wheeler,   11  N.   H.  why  the  auctioneer  shall  be  viewed 

424;   Adams  v.  Humphrey,  54  Ga.  as  the  agent  of  the  purchaser  in  the 

496;  Rodgers  V.  Bass,  46  Tex.  505.  sale    of   goods    which     does     not 

8  While   the   statements    of    the  equally  apply  to  the  sale  of  lands. 


SALES    BY    AUCTION.  301 

by  the  same  rules,  llcucc  u  vcikIoi-  actin;^  as  lii.s  own  aiie- 
tioiieer,  l)einj.c  a  party  to  the  sah'  and  a  necessary  party  to  a 
sail  to  recovei'  the  imichase  money,  is  incoiniieient  to  act  in 
the  transaction  as  the  aj^ent  of  tin*  liuyer.'"  And  it  is  ininia- 
terial,  so  fai'  as  alTects  the  opei-ation  of  this  iiih*,  whether  tlie 
aiictioneei'  has  liiuiself  any  lieiielicijil  interest  in  tin-  centract 
or  sinijdy  stands  in  a  lidnciary  ridation  to  a  thiid  person,  so 
htnji  as  lie  is.  in  h  j^al  point  of  riew,  the  real  party  to  and  the 
proper  one  to  sue  niion  the  conliact." 

§  246.  Auctioneer  cannot  delegate  authority.  Where  an  auc- 
tioneer is  emplo.\e(l  to  si'll  he  must  hinisi-lf  conduct  the  sale, 
and  cannot,  without  special  authority,  delegate  his  powers  to 
aiu)tlier.^-  With  regard  to  merely  snl>si<liary  matters  he  may 
employ  others  to  assist  him,  as  to  make  the  outcry  or  ply  tlie 
hammer;^''  but  everything  directly  connected  with  the  sale 
must  be  conducted  undei-  his  immediate  supervision.^* 

^247.  Withdrawing  bid.  Mutuality  is  essential  to  the  valid- 
ity of  all  contracts,  and  so  vitally  necessary  is  it  to  such  as 
are  not  under  seal  that  they  cannot  be  said  to  exist  without 
it.  A  bid  at  auction,  before  the  hammer  falls,  is  like  an  offer 
before  acceptance;  and  a  bi(hler  has  a  right  to  withdraw  his 
oll'er  at  any  time  before  the  property  is  struck  off  to  him.  Tn 
such  case  there  is  no  contract;  and  such  bidder  cannot,  in  any 
sense,  be  regarded  as  a  purchaser.^^  The  brief  interval 
between  the  bid  and  its  acceptance,  it  is  said,  is  the  reasonable 
time  which  the  law  allows  for  inquiry,  consideration,  correc- 
tion of  mistakes  and  retraction.' *5 

§  248.  Refusing  bid.  An  auction  being  an  ojien  sale,  the 
auctioneer  cannot  in  general  refuse  to  accept  a  bid,  though, 
it  seems  that  he  is  not  obliged  to  take  the  bid  of  a  person  of 
known  irresponsibility.'"  and  may  refuse  snth  bid  when  its 

It'  Tull  V.  David,  45  Mo.  444.  I'f  Poree  v.  Bonneval.  6  La.  Ann. 

11  See    Browne,    Stat.    Frauds,    §  386. 

367;  3  Par.  Cont.  11.    But  these  re-  i^  Chambers    v.     Jones,    72    111. 

marks  do   not   apply   to  a  sheriff  275. 

or  like  officer  acting  simply  in  the  i"- 1  Addison,  Cont.  18. 

execution  of  a  power  of  sale  and  i«  Fisher   v.   Seltzer,    23   Pa.    St. 

not  in  strictness  as  a  trustee.  308. 

1^  Stone    v.    State,    12    Mo.     400;  w  pon  v.  Zellers,  7  N.  .T.  L.  153; 

Comnionwoalth     v.      Hamdcn.     1!t  ll()l)l)s  v.  Beavers,  2  Ind.  142. 
Pick.  (Mass.)  482. 


302  SALES    BY    AUCTION. 

acceptance  would  have  the  effect  of  frustrating  the  very  pur- 
pose for  vvhicli  the  sale  was  designed,  notwithstanding  such 
bid  may  be  nominally  the  highest.^^  So,  also,  he  may  refuse 
the  bid  of  a  minor  or  other  person  legally  incapable  of  making 
an  enforceable  contract.'-* 

If  the  sale  is  without  reserve,  he  should  not  accept  a  bid 
from  the  vendor  or  any  one  acting  in  his  behalf. 

§  249.  Auctioneer's  statements  and  representations.  It  is 
the  duty  of  the  auctioneer,  as  the  representative  of  the  vendor, 
to  obtain  the  highest  price  attainable  for  the  land,  and  to  this 
end  he  may  make  any  statements  or  representations  calculated 
to  inspire  competition  among  bidders,  provided  same  are  true. 
He  may  even  advance  opinions  of  his  own,  and,  when  made 
simply  as  opinions  and  not  as  statements  of  fact,  it  is,  it  seems, 
immaterial  how  visionary  or  destitute  of  foundation  they  may 
be.  But  where  he  makes  a  misstatement  of  fact  or  a  misrep- 
resentation which  is  calculated  to,  and  does,  affect  action  on 
the  part  of  bidders,  or  where  his  statements  have  a  strong 
tendency  to  induce  buyers  to  refrain  from  inquiry,  any  bidder 
who  is  thus  misled  to  his  injury  will  not  be  bound  by  his  bid. 
Where  sales  are  made  by  auction  it  is  usually  impracticable 
for  a  bidder  to  verify  statements  made  by  the  auctioneer  before 
making  his  bid:  for  this  reason  he  has  a  right  to  rely  on  state- 
ments so  made  and  to  refuse  to  consummate  the  sale  should 
they  prove  untrue.^o 

§  250.  Puffers  and  by-bidders.  A  puffer,  in  the  strictest 
meaning  of  the  word,  is  a  person  who,  without  any  intention 
of  purchasing,  is  employed  by  the  vendor  at  an  auction  sale 
to  raise  the  price  by  fictitious  bids,  thereby  increasing  com- 
petition among  the  bidders,  while  he  himself  is  secured  from 
risk  by  a  secret  understanding  with  the  vendor  that  he  shall 
not  be  bound  by  his  bids.^i  The  legal  effect  of  such  employ- 
ment upon  the  sale  was  for  man^-  years  a  disputed  question 
in  the  courts  of  England,  the  common-law  and  chancery  courts 
having  at  different  times  formulated  rules  variant  and  even 


18  See  Murdock's  Case,  2  Bland,        20  Roberts  v.  French,  153  Mass. 

Ch.  (Md.)  46.  60;    Stevens  v.  Giddings,  45  Conn. 

10  Kinney  v.  Showdy,  1  Hill   (N.  507. 
Y.)   544.  21  Peck  v.  List,  23  W.  Va.  338. 


SALES    BY    AUCTION.  303 

contradictory.--  As  iiii^ht  be  expected,  the  courts  of  the 
United  States  have  to  a  considerable  extent  rendered  con- 
flicfiii}^  decisions  on  tlie  snbjecl,  son)e  followin};  (lie  rules  of 
the  i<hij<lish  <()iiinion-la\v  courts,  and  (jthers  those  pi'onniliialcd 
by  the  couils  of  chancery;  but  the  weijiht  of  authority  now 
is  and  at  all  times  has  been  to  condemn  the  practice  as  incon- 
sistent with  common  honesty  and  fair  dealin;;-.-''  It  is  funda- 
mental that  the  basis  of  all  commercial  transactions  should 
be  in  <j,ood  faith;  and  more  espe<ially  is  this  true  when  the 
public  are  brou<j;ht  tojjjether  upon  a  coulideuce  that  the 
article  set  up  for  sale  is  to  be  disposed  of  to  the  highest 
bidder,  which  could  never  be  the  case  if  the  owner  nii^dit 
privately  and  secretly  enhance  the  price  by  a  person  employed 
for  the  purpose.  The  offer  of  property  at  auction  without 
reserve  is  an  inijilied  f^uaranty  that  it  is  to  be  sold  to  the 
highest  bidder;  and  each  bidder  has  the  right  to  assume  that 
all  previous  bids  are  genuine.  The  seller  in  substance  so 
assures  him,  and  the  secret  employment  by  the  seller  of  an 
agent  to  make  fictitious  bids  is  equivalent  to  a  false  represent- 
ation by  him  as  to  a  matter  in  which  he  is  bound  to  speak  the 
truth  and  act  in  good  faith.-^  Such  an  act,  therefore,  is  a 
positive  fraud  upon  the  purchaser,  and  should  be,  as  it  is, 
sufficient  in  itself  to  vitiate  the  sale,-^  unless  the  purchaser 
with  knowledge  of  the  fact  has  acted  upon  it,  so  as  to  deprive 
himself  of  the  right  to  complain.^^ 


2:;  The  law  courts  held  that  by-  449;     Bank     of       Metropolis       v. 

bidding  or  puffing  was  a  fraud,  and  Sprague,  20  N.  J.  Eq.  159;   Reyn- 

that  any  highest  bidder  who   had  olds    v.    Dechaums,    24    Tex.    174; 

been  deceived  by  it  could  avoid  his  Peck  v.  List.  23  W.  Va.  338;  Curtis 

contract   or  refuse  to  carry  it  out;  v.  Aspinwall,  114  Mass.  187;  Towle 

whereas  the  equity  courts  were  dis-  v.  Levitt,  23  N.  H.  360;   Veazie  v. 

posed  to  countenance  it  so  long  as  Williams,  8  How.  (U.  S.)  134. 

it  was  employed  defensively  to  pre-  -*  Curtis  v.  Aspinwall,  114  Mass. 

vent  a  sacrifice.     The  doctrines  at  187. 

common  law  and  in  equity  have  re-  -•"'  Towle  v.  Leavitt,  23  N.  H.  360; 

cently   (1867)   been  assimilated  in  Stains   v.   Shore,    16    Pa.   St.   200; 

England  (at  least  so  far  as  regards  Flannery  v.  Jones,  ISO  Pa.  St.  338; 

auction   sales  of  real    estate)     by  Bank  of  Motropolis  v.  Sprague.  20 

statute,   making  the   rule  at  com-  N.  J.  Eq.  159;  Bayham  v.  Boch,  13 

mon    law    likewise     the    rule    in  La.  Ann.  287;  Darst  v.  Thomas.  87 

equity.  111.   222. 

2:?  Pennock's  Appeal.   14    Pa.    St,  2«  Peck  v.   List,  23  W.  Va.  338; 


304  SALES    BY    AUCTION. 

Ordinarily  by-bidders  are  employed  by  the  owner  of  the 
property  to  be  sold,  and  when  such  is  the  case  they  are  puffers 
in  the  strictest  sense  of  the  word;  but  it  is  uninii)ortant 
whether  the  by-bidder  is  employed  by  the  owner  of  the  land 
or  by  some  one  else  having  a  pecuniary  interest  in  the  sale, 
and  who  can  make  j-ood  his  assni-ance  to  the  by-bidder  that  he 
shall  not  be  held  resousible  for  his  bid  if  it  happen  to  be  the 
highest  made.  The  real  essence  of  the  fraud  is  not  that  the 
owner  is  bidding  for  the  property,  but  consists  in  the  fact  that 
a  person  pretending  to  be  a  bona  fide  bidder  deceives  honest 
bidders,  raises  the  price  of  the  property  by  fictitious  bids, 
increasing  competition,  while  he  himself  has  good  reason  to 
believe  and  does  believe  that  he  is  secure  from  any  risk  of 
being  held  personally  liable  for  his  offers;  and  it  is  immaterial 
from  whom  he  derives  this  assurance  of  immunity  provided 
the  party  giving  the  same  has  the  power  to  make  it  good.^^ 

There  are  American  cases  which  seem  to  lay  down  the  rule 
that  the  owner  may  protect  himself  against  a  sacrifice  of  the 
property  by  ''bidding  in"  the  same;  that  persons  employed 
by  him  for  this  purpose  are  not  to  be  classed  as  puffers  where 
the  price  is  not  enhanced  beyond  a  fair  value,^^  and  that  such 
employment,  if  made  in  good  faith,  will  not  vitiate  the  sale;^'^ 
but  it  is  difficult  to  reconcile  the  reasoning  or  the  result  of 
such  cases  with  the  commonly-accepted  rules  first  stated,  or 
to  understand  how  the  element  of  good  faith  can  be  made  to 
apply,  unless  the  owner  has  publicly  reserved  to  himself  the 
exercise  of  such  right. 

The  doctrine  as  just  stated  had  its  origin  in  the  chancery 

Pennock's  Appeal,  14  Pa.  St.  449;  (Tenn.),  667.     In  this  case  execu- 

Backenstoss  v.  Stabler,  33  Pa.  St.  tors  employed  a  person  of  experi- 

251;  Latham  v.  Morrow,  6  B.  Mon.  ence  to  assist  them  in  the  selling 

(Ky.)   630.  of  lands;  the  property  was  divided 

27  Peck  V.  List,  23  W.  Va.  338.  and   an   estimate   of   value  placed 

28  Davis  V.  Petway,  3  Head  upon  the  several  lots.  During  the 
(Tenn.),  667;  Reynolds  v.  De-  progress  of  the  sale,  when  the  bid- 
chaums,  24  Tex.  174;  Lee  v.  Lee,  dings  for  any  particular  tract  were 
19  Mo.  420;  Walsh  v.  Barton,  24  below  the  estimated  value,  the  per- 
Ohio  St.  28;  and  see  Phippen  v.  son  employed  to  conduct  the  sale 
Stickney,  3  Me.  387;  Latham  v.  would  request  some  one  of  the  by- 
Morrow,  6  B.  Mon.  (Ky.)  630;  Pen-  standers  to  bid  for  the  same,  and 
nock's  Appeal,  14  Pa.  St.  446.  in  no  instance  exceeding  the  mini- 

29  Davis     v.     Petway,     3     Head  mum   value  previously  placed  on 


SALES    BY    AUCTION.  305 

courts  of  Kiiglaiid  and  for  iiiaiiy  years  it  seems  to  have  been 
the  ciistoui  ill  that  country  to  reserve  a  bidding?  for  the  owner 
or  for  some  person  to  be  employed,  covertly  or  otherwise,  to 
bid  on  his  behalf,  so  that  the  property  mij^ht  not  be  sold  at 
any  considerable  loss.  lUit  the  tjeneral  tendency  of  the  En;;- 
lish  courts  has  been  to  discourage  such  practices  and  a  resuuKr 
of  the  later  cases  would  seem  to  declare  the  rule  that  if  due 
notice  be  }j;iven  to  the  i)ublic  of  the  owner's  intention  to  bid, 
or  to  employ  an  a.uent  to  bid  in  his  behalf,  the  transaction  will 
not  be  held  fraudulent  or  unfair  or  the  sale  thereby  vitiated. 
Hut  where  the  fictitious  bidding  is  done  clandestinely,  even 
thouj^h  one  person  only  is  appointed,  the  sale  will  be  held 
fraudulent.3*^ 

^  251.  Vendor  as  bidder.  If  the  owner's  employment  of 
puffers  who  bid  at  an  auction  sale  of  his  property  avoids  the 
sale,  and  that  such  is  the  fact  may  now  be  considered  the 
settled  doctrine,  it  follows  from  the  same  reasons  that  the 
owner  has  no  right  to  bid  himself  unless  he  publicly  reserves 
such  rijjht.^^  It  is  true  that  the  spectacle  of  a  vendor  openly 
ajjpearing  as  a  bidder  at  a  sale  of  his  own  property  is  a  matter 
of  most  infrequent  occurrence,  and  the  practice  as  a  rule  is 
never  publich'  avowed.  Yet  there  are  many  indirect  ways  in 
which  it  may  be  and  is  accomplished. 

Undoubtedly  the  vendor  may  bid,  by  himself  or  his  agent, 
to  the  extent  to  which  he  has  expressly  reserved  the  right  so 
to  do,  provided  proper  notice  is  given  so  that  no  one  will  be 
misled  or  deceived  ;^'2  but  if  the  property  is  put  up  with  a 
right  of  bidding  once  reserved  to  the  vendor,  that  right  is 
exercised  if  the  auctioneer  with  the  vendor's  authority  start 
the  property  at  a  certain  sum ;  and  the  purchaser  may  avoid 
the  contract  if  the  auctioneer  make  or  accept  a  further  bid- 
ding for  the  vendor.-'^^ 

§  252.  Combinations  among  bidders.  It  is  illegal  for  per- 
sons intending  to  purchase  at  auction  sales  to  combine  and 

the   tract.      Upon    these   facts   the  •"'i  Baham   v.   Bach,   13   La.  Ann. 

court  refused  to  grant  the  vendee  287. 

any  relief  against  the  sale.     And  •^-  Miller    v.    Baynard,    2    Houst 

see  Latham  v.  Morrow,  6  B.  Mon.  (Del.),  559. 

(Ky.)  6.30.  :'3  Bateman,   Auctions,   122, 
30  Bateman  on  Auctions,  164. 
20 


306  SALES    BY    AUCTION. 

enter  into  ajireements  not  to  bid  against  each  other.  The 
polic}'  of  the  hiw  is  opposed  to  any  act  which  prevents  full 
and  fair  ("onii)etiti()n,  or  is  calculated  to  de})reciate  values  or 
injure  the  sale,-^^  and  contracts  made  under  such  circumstances 
are  incapable  of  legal  enforcement  at  the  suit  of  the  conspiring 
bidder.35 

But  this  rule  is  confined  to  cases  where  there  is  an  agree- 
ment not  to  bid  with  a  view  of  stilling  competition,  and  does 
not  extend  to  cases  where  several  persons  join  to  anake  a 
purchase  for  their  common  benefit  without  an  agreement  not 
to  compete  ;3^'  nor  to  cases  where  several  creditors,  no  one 
of  whom  would  be  willing  to  purchase  a  property  of  so  large 
value,  unite  to  purchase.  Such  a  union  is  calculated  to 
enhance  the  price  rather  than  injure  the  sale;  and  where  such 
persons  agree  together  that  they  will  authorize  one  person  to 
bid  for  the  propertj'  on  their  joint  account  the  agreement  will 
not  be  considered  unlawful.^^  Whether  such  a  combination 
is  fraudulent  or  not  depends  upon  intention.  Prima  facie  it 
would  not  be  fraudulent,  and  could  only  be  made  to  appear 
otherwise  by  showing  that  such  an  arrangement  was  made 
for  the  purpose  and  with  the  view  of  preventing  fair  compe- 
tition, and  by  reason  of  want  of  bidders  to  dej)ress  the  price 
of  the  property  offered  for  sale  below  the  fair  market  value. 
In  such  an  event  the  sale  might  be  avoided  as  between  the 
parties  as  a  fraud  upon  the  rights  of  the  vendor.  It  is  the 
end  to  be  accomplished  that  makes  such  combinations  lawful 
or  otherwise;  and  if  the  arrangeanent  is  entered  into  for  no 
fraudulent  purpose,  but  for  the  mutual  convenience  of  the 
parties,  as  with  a  view  of  enabling  them  to  become  purchasers, 
each  being  desirous  of  purchasing  a  part  of  the  property 
offered  for  sale,  and  not  an  entire  lot,  or  induced  by  any  other 
reasonable  and  honest  purpose,  such  agreement  will  be  valid 


34Easton  V.  Mawkinney,  37  Iowa,  "ic  Jenkins  v.  Frink,  30  Cal.  586; 

601;    Bellows  v.  Russell,   20  N.  H.  Phippen  v.  Stickney,3  Met.  (Mass.) 

427;  Jenkins  v.  Frink,  30  Cal.  586;  388;  and  see  Gardiner  v.  Morse,  25 

Gardiner   v.    Morse,    25    Me.    140;  Me.  140. 

Hook  V.  Turner,  22  Mo.  333;   Dud-  a?  Bank  v.  Sprague,  20  N.  J.  Eq, 

ley  V.  Odom,  5  S.  C.  131.  159;    Bellows  v.  Russell,  20  N.  H. 

35  Barton  v.  Benson,  126  Pa.  St.  427;  Bradley  v.  Kingsley,  43  N.  Y. 

431.         ,  534;  Gulick  v.  Webb,  41  Neb.  706. 


SALES    BY    AUCTION.  307 

!Ui(l    bindliif^',^-^   iiotwillisliiiKliii;;    it    may   indirectly   have   the 
elt'ec-t  of  keepinj^  others  fidiii  hidding.^'^ 

It  will  be  seen,  therefore,  that  no  definite  rule  can  be 
announced  that  will  lie  conti'ollinj,^  in  eveiy  case,  and  courts 
will  look  Ixyond  the  iiiei-e  fact  of  an  aHSOciation  of  persons 
formed  for  the  puii»ose  of  bidding;  at  a  sale.  If  nj)on  <'Xamin- 
ation  it  is  found  that  the  object  and  purpose  of  the  association 
is  not  to  prevent  comp<'tilion,  but  to  induce  and  enable  the 
persons  composing  it  to  pai'ticipate  in  the  bidding's,  the  sale 
should  be  upheld;  otherwise  if  entered  into  for  the  purpo.se 
of  shutting  out  competition  and  depressing  the  sale  so  as  to 
obtain  the  ])i<»])erty  at  a  sacrifice.  Each  case  must  depend 
upon  its  own  circumstances,  and  it  is  competent  for  courts  to 
incpiire  into  them  and  to  ascertain  and  determine  the  true 
character  of  each.'**' 

§  253.  Auctioneer's  memorandum.  It  was  formerly  thought 
that  sales  by  auction  were  not  within  the  meaning  of  the 
statute  of  frauds  for  the  reason  that  the  publicity  of  the  sale 
was  sufticieut  to  guard  against  fraud  and  i)erjury,  but  this 
doctrine  has  long  been  repudiated  and  the  general  rule  now 
is  that  auction  sales  stand  upon  the  same  footing  as  other 
sales  of  realty,  and  that  a  memorandum  is  essential  to  sustain 
the  same.  An  auctioneer,  however,  when  selling  real  estate 
at  auction,  acts  as  the  agent  of  both  vendor  and  vendee;  and 
his  entry  in  the  sale-book,^^  at  the  time  of  the  sale,  containing 
a  description  of  the  property  sold,  the  name  of  the  vendor^^ 

38  Jenkins  v.  Frink,  30  Cal.  586.  (U.  S.)  519;  and  see  Bradley  v. 
An  agreement  between  A.  and  B.  Kingsley,  43  N.  Y.  534;  Jenkins  v. 
that  B.  will  permit  A.  to  buy  a  Frink,  30  Cal.  586;  Fasten  v.  Maw- 
tract  of  land  which  is  to  be  sold  at  kinney,  37  Iowa,  601;  Fenner  v. 
auction,  and  that  A.  will  buy  it  Tucker,  6  R.  I.  551;  Loyd  v.  Ma- 
and  convey  a  certain  part  thereof  lone,  23  111.  43;  Miltenberger  v. 
to  B.  at  an  appraisement  to  be  Morrison,  39  Mo.  71;  Phippen  v. 
made  by  certain  persons,  is  not  Stickney,  2  Met.  (Mass.)  384. 
void  on  its  face  for  illegality.  ■»!  The  entry  by  a  clerk,  under 
Phippen  v.  Stickney,  3  Met.  the  direction  of  the  auctioneer, 
(Mass.)   384.  will  be  regarded  as  the  act  of  the 

3i>Gulick  V.  Webb,  41  Neb.  706;  auctioneer.    Doty  v.  Wilder,  15  111. 

Breslin  v.  Brown,  24  Ohio  St.  565;  407. 

Barling    v.    Peters,    134    111.    606;  -i^  This    is    very    important   and 

Smith  V.  Ullman,  58  Md.  183.  a  matter  that   is  often   neglected, 

*»>  Kearney   v.    Taylor,    15    How.  particularly    with    respect    to    the 


308  SALES    BY    AUCTION. 

and  purcliasci',  the  price  and  terms,  is  a  sufficient  memoran- 
dum in  ^^I•itin;,^  within  the  intent  of  the  statute  of  frauds, 
aud  binds  both  parties. ^^  But  to  effect  this  the  memorandum 
must  on  its  face,  or  in  connection  with  some  writing,^-*  contain 
everything  necessary-  to  show  the  contract  between  the  parties 
with  such  reasonabh^  certainty  that  its  terais  may  be  under- 
stood from  the  writing  itself  without  recourse  to  parol  proof. ^^ 
With  regard  to  the  form  of  the  memorandum,  it  would  not 
seem  that  it  is  necessary  that  in  case  of  sales  of  several  parcels 
a  special  note  embodying  all  the  foregoing  features  should  be 
made  for  each  parcel  sold;  nor  is  this  the  general  practice  of 
auctioneers.  As  a  rule,  a  general  memorandum  entered  in  a 
book  by  the  auctioneer  at  the  commencement  of  an  auction 
sale,  showing  the  name  of  the  person  on  whose  account  the 

vendor.  An  auctioneer's  memo-  the  signed  memorandum  contains 
randum  will  not  satisfy  the  re-  such  reference  to  the  other  papers 
quirements  of  the  statute  of  frauds  as  to  make  the  latter  part  of  the 
unless  it  names  or  describes  the  former;  but  the  connection  be- 
vendor.  Thus,  where  a  sale  was  tween  the  signed  and  unsigned  pa- 
made  at  public  auction,  and  the  pers  cannot  be  made  by  parol 
advertisement  of  same  stated  the  evidence  that  they  were  intended 
sale  to  be  made  "to  settle  the  es-  by  the  parties  to  be  read  together, 
tate  of  John  Higgins,"  a  memo-  or  of  facts  and  circumstances  from 
randum  made  by  the  auctioneer,  which  such  intention  may  be  in- 
neither  naming  the  vendors  nor  ferred.  Johnson  v.  Buck,  35  N. 
describing  them,  except  to  desig-  J.  L.  338.  Thus,  an  indorsement 
nate  them  as  the  "sellers"  was  on  an  order  of  sale  by  a  sheriff, 
held  fatally  defective,  although  the  as  follows:  "Sold  to  A.  B.  for 
parties  for  whom  the  sale  was  $2,400,  Oct.  16,  1869,"  signed  "C. 
made  were  the  devisees  of  John  D.,  sheriff,"  was  held  not  a  suffi- 
Higgins.  McGovern  v.  Hern,  153  cient  contract  or  memorandum  of 
Mass.  308;  Mentz  v.  Newwitter,  sale  within  the  Indiana  statute 
122  N.  Y.  491;  but  compare  Lee  of  frauds.  The  fact  that  such 
v.  Cherry,  85  Tenn.  707.  memorandum  was  indorsed  on  the 

43  Doty  v.  Wilder,  15  111.  407;  order  of  sale,  but  without  any 
Walker  v.  Herring,  21  Gratt.  (Va.)  reference  to  it  for  the  ascertain- 
678;  Morton  v.  Dean,  13  Met.  ment  of  the  thing  sold,  is  no  bet- 
(Mass.)  385;  Johnson  v.  Buck,  35  ter  than  if  indorsed  on  any  other 
N.  J.  L.  342;  Stadleman  v.  Fitz-  paper.  Ridgeway  v.  Ingram,  50 
gerald,  14  Neb.  292;  Pike  v.  Balch,  Ind.  145. 

38  Me.  302.  <5  Doty    v.    Wilder,    15    111.    407 

44  To  satisfy  the  statute  of  frauds  Gwathney  v.  Cason,  74  N.  C.  5 
it  is  sufficient  that  the  terms  of  Ridgeway  v.  Ingram,  50  Ind.  145 
the  bargain  may  be  gathered  from  McGovern  v.  Hern,  153  Mass.  308 
two   or   more   separate  papers,   if  Mentz  v.  Newwitter,  122  N.  Y.  491 


SALES    BY    AUCTION.  309 

sale  is  iikmIc,  the  naliirc  <•!'  tlic  iir(i|)<Mly.  tin-  It-iiiis  (tf  \Kiy- 
luciil,  rctcriiii;^'  to  cut  lies  Inlluw  iri;^'  the  iiaiiics  of  itiiicliascrs 
and  lots  sliucU  oil'  to  each,  and  sij^Micd  hv  the  auctioneer,  under 
wliicli  lie  enters  the  name  (»f  each  purchaser,  th<'  desciipt ion 
(»r  the  property  sold  and  tlie  ]»rice,  is  a  sulhcicnt  inenioranduni 
within  the  statute."^  In  every  instance,  however,  the  auction- 
eer's in(  luoranduin  must,  either  in  itself  or  in  connection  with 
other  wi'iliiius  iiindc  a  jiart  of  it,  conform  in  .ill  resjjectH  to  the 
rules  as  laid  down  for  aj;reeinents  between  parties  on  ])ri\ate 
sale;'*^  and  a  memorandum  settinjj;  fortli  the  names,  jii-ice, 
description  and  fact  of  part  j)aym('nt,  l)Ut  not  the  "conditions 
of  sale,"  which  it  states  the  vendor  shall  duly  oltserve  and 
fullill,  would  be  insutlicieut  within  the  statute  of  frauds.^'^  So, 
also,  an  uiisi<;ned  memorandum  of  an  auctioneer,  unconnected 
by  annexation  or  reference  with  any  writing  duly  authenti- 
cated by  the  sij^nature  of  the  party  sought  to  be  charj^ed,  is 
not  a  memorandum  within  the  meaning  of  the  statute.*" 

It  is  further  essential  to  the  validity  of  the  auctioneer's 
memorandum  that  he  shall  sustain  no  relation  toward  the 
vendee  inconsistent  with  the  true  character  of  an  agent.  The 
chief  reason  in  supj)ort  of  the  rule  that  an  auctioned',  acting 
solely  as  such,  may  be  the  agent  of  both  parties  to  bind  them 
by  his  memorandum  is  that  he  is  supposed  to  be  a  disinter- 
ested person,  having  no  motive  to  misstate  the  bargain,  and 
equally  entitled  to  the  contidence  of  both  parties.  But  this 
reason  fails  w'here  he  is  a  party  to  the  contract  and  a  party  in 
interest  also.    Hence,  a  vendor  cannot  act  as  the  auctioneer 

As  where  an  auctioneer,  on  selling  ute   of    frauds.      Morton   v.    Dean, 

real  estate  to  S.D.  at  auction,  after  13  Met.    (Mass.)   385. 

reading  or  exhibiting  written  con-  4<i  Price  v.   Durin,   56   Barb.    (N. 

ditions  of  sale,   made   this   memo-  Y.)    647;    Springer   v.    Kleinsorge, 

randum  in  writing:     "Sale,  on  ac-  83  Mo.  152. 

count  of  Messrs.  Morton  and  Dean,  47  See  Grafton  v.  Cummings,  99 

assignees    of    the    Taunton     Iron  U.  S.  100;   Knox  v.  King,  36  Ala. 

Company,  of  the  real  estate,  nail-  367;    Brown  v.  Whipple,  58   N.  H. 

works,     water-privilege,     buildings  229;  Lincoln  v.  Preserving  Co.,  132 

and    machinery,   agreeable   to   the  Mass.    129;    Drake   v.   Seaman,   97 

plans  and  schedule  herewith.    Sale  N.  Y.  230. 

to   Silas  Dean    for   $30,300.     April  -"^  Riley  v.  Farnsworth.  116  Mass. 

5th,  1843."  Held  that,  as  this  mem-  223. 

orandum  did  not  contain  nor  refer  *'•>  Rafferty  v.  Longee,   63   N.   H. 

to   the   conditions   of   sale,   it   did  54. 

pot  take  the  case  out  of  the  stat- 


310  SALES    BY    AUCTION. 

of  liis  own  sale.  It  requires  uo  deiuoustration  to  show  that 
the  mischief  intended  to  be  prevented  by  the  statute  of  frauds 
would  still  continue  to  exist  if  one  party  to  a  contract  could 
make  a  memorandum  of  it  which  could  absolutely  bind  the 
other.  If  such  were  the  case  the  statute  would  furnish  no 
security  ajiainst  fraud;  for  the  vendor  could  fasten  his  own 
terms  on  his  vendee,  and,  the  contract  being  in  writing,  the 
vendee  would  be  unable  to  show  by  parol  evidence  that  the 
temis  of  the  bargain  were  incorrectly  or  imjterfectly  stated. 
He  could  not  vary  or  alter  it  by  the  testimony  of  those  pres- 
ent at  the  sale,  and  the  publicity  of  a  sale  by  auction  would 
be  no  safe-guard  against  false  statements  of  the  terms  of  sale 
made  in  the  written  memorandum  signed  by  a  party  acting  in 
double  capacity  of  auctioneer  and  vendor.  Nor  can  it  make 
any  difference  as  to  the  ])ower  of  the  vendor  to  make  the 
memorandum  binding  on  the  vendee  that  the  sale  is  made  by 
the  foraier  in  his  representative  or  fiduciary  character  as 
executor,  administrator,  guardian,  trustee,  etc.  He  is  still  the 
party  to  the  contract;  the  price  is  to  be  paid  to  him;  he  is 
to  deal  with  the  purchase  money ;  his  interest  and  bias  would 
naturally  be  in  favor  of  those  whom  he  represented;  and, 
what  is  more  material,  in  case  of  dispute  or  doubt  as  to  the 
terms  of  the  contract,  his  duties  and  interests  would  be 
adverse  to  the  vendee.  He  would,  therefore,  stand  in  a  rela- 
tion which  would  necessarily  disqualify  him  from  acting  as 
the  agent  of  both  parties.^^ 

§  254.  Who  may  make  the  memorandum.  It  goes  without 
saying  that  an  auctioneer's  memorandum  should  be  made  by 
the  auctioneer,  yet  in  many  cases  this  is  not  actually  done, 
and  where  the  auctioneer  plies  the  hammer  it  is  usual  to 
commit  the  clerical  part  of  the  work  to  others.  This  has 
resulted  in  some  conflict  of  authority  as  to  who  may  legally 
make  the  memorandum  of  sale.  The  doctrine  may  now  be 
considered  as  fairly  settled,  however,  that  entries  of  auction 
sales  made  by  the  auctioneer's  clerk,  if  he  is  a  disinterested 
person,  will  be  sufficient  to  bind  the  parties  when  the  property 
exposed  for  sale  is  finally  knocked  down.'^i     But  this  is  the 

50  Bent  V.  Cobb,  9  Gray  (Mass.),  Smith  v.  Jones,  7  Leigh  (Tenn.), 
397;  Tull  v.  David,  45  Mo.  444.  165. 

51  Howell  V.  Shewell,  96  Ga.  454; 


SALES    BY    AUCTION.  311 

limit,  and  tlic  fact  of  di.siiiU'rcKU'dneKs  is  an  esHenlial  factor 
of  validity.  Hence,  neither  the  vendor  nor  his  a{j;ent  may  act 
as  snch  clerk,  and  in  the  event  that  thev  should  assume  such 
emi»loyment  the  memorandum  would  not  bind  the  pui'chaser''- 
unh'ss  he  also  signed  it.""' 

ij  255.  Auctioneer's  receipt  as  memorandum,  ^^'here,  as  is 
the  ahnost  universal  jtractice,  a  (leposit  is  recjuired  at  the 
time  of  sale,  a  receipt  therefor  <;iven  by  the  auctioneer  will  in 
many  cases  amount  to  a  valid  agreement  on  the  part  of  the 
vendor  within  tlie  statute. 

§256.  The  deposit.  An  almost  invariabh*  rule  in  sales  by 
aucti(ui  is  for  the  purchasei'  to  pay  souiethin«^  at  the  time  of 
sale;  and  the  amount  or  the  nu*thod  of  its  ascertainment  is 
always  nuide  a  part  of  the  t(Mins  and  conditions  iipon  which 
the  sale  is  nuide.  This  payment,  which  is  technically  termed 
a  deposit,  is  considered  as  a  part  of  the  purchase  money,  and 
not  as  a  mere  j)ledge.^^ 

Usually  where  the  purchaser  fails  or  refuses  to  perform  the 
contract  the  deposit  is  forfeited  to  the  vendor,^^  althoujrh  this 
is  a  matter  lar<;ely  dejtendent  on  intention;  and,  while  this 
result  is  allowed  to  prevail  in  all  cases  where  it  forms  a  special 
clause  in  the  conditions  of  sale,  it  will  also  follow  in  other 
cases  if  it  can  be  imj)lied  from  the  contract  that  such  was  the 
intention  of  the  parties.  A  stipulation  that  the  deposit  shall 
be  forfeited  to  the  vendor  in  case  the  vendee  fails  to  comply 
with  the  residue  of  the  terms  of  sale  is  not  unreasonable,'"''' 
and  numerous  cases  announce  the  rule  that  one  who  so  pur- 
chases and  then  makes  default  will  be  precluded  from  recover- 
'm<^  the  sum  so  paid.^'''  It  has  been  held,  however,  that  the 
deposit  will  not  be  forfeited  upon  the  purchaser's  failure 
to  comply  where  there  is  no  provision  to  that  effect  in  terms.^" 

f'- Howell  V.  Shewell,  96  Ga.  454.  Thompson  v.  Kelly,  101  Mass.  299; 

S3  See  Bamber  v.  Savage,  52  Wis.  McKinney  v.  Harvie,  38  Minn.  IS; 

110.  Cobb  V.  Hall,  29  Vt.  510;    Galway 

5*  Kelly  V.  Thompson,  101  Mass.  v.   Shields,   66   Mo.  313. 
291.  •'^■'^  Bleeker  v.  Graham,  2  Edw.  Ch. 

S5  Curtis  v.  Aspinwall,  114  Mass.  (N.    Y.)    647.      The   English   cases 

187.  announce  a  different  rule,  see  Ex 

no  Donahue     v.     Parkman,     161  parte  Barrell,   L.   R.   10,   ch.   512; 

Mass.  412.  Howe  v.  Smith,  27  Ch.  Div.  89. 

S7  Sage  V.  R.  R.  Co.  99  U.  S.  334; 


312  SALES    BY    AUCTION. 

If  the  title  prove  defective,  or  if  the  contract  is  rescinded  on 
the  ground  of  fraud  or  misrepresentalion  on  the  part  of  the 
vendor,  or  if  the  vendor  refuses  or  is  unable  to  jjerform  it,  or 
if  for  any  other  reason  the  sale  be  avoided  without  fault  on 
the  part  of  the  purchaser,  the  dei)osit  must  be  returned. 

Where  land  is  sold  at  auction  and  a  deposit  is  re(iuired, 
the  auctioneer  is  the  proper  custodian  thereof;  he  should 
safel.v  keep  it  and  pay  it  to  neither  party  without  the  consent 
of  the  other  until  the  sale  is  completed.'"'"  The  auctioneer,  in 
this  event,  is  regarded  as  a  stakeholder  for  both  parties.  r>ut 
where  the  purchaser  suffers  a  long  time  to  elapse,  and  by  other 
acts  there  appears  to  be  an  intention  on  the  part  of  the  pur- 
chaser to  consider  the  owner  of  the  jn'operty  entitled  to  it,  a 
recovery  will  not  be  permitted  as  against  the  auctioneer  in  a 
suit  by  the  purchaser  for  the  deposit  after  the  latter  luii?  paid 
it  over  to  the  owner.*'^  As  a  rule,  however,  he  should  not  ijart 
with  the  deposit  until  the  sale  has  been  either  rescinded  or 
carried  into  effect;  if  both  parties  claim  it  he  may  file  a  bill 
of  interpleader  and  pa}'  the  money  into  court. 

§  257.  Refusal  to  comply  with  bid — Resale.  One  of  the  most 
common  features  insx^rted  in  conditions  of  sale,  where  property 
is  exposed  at  public  auction,  consists  in  the  provision  for  resale 
in  case  of  purchaser's  default.  By  this  provision  the  purchaser 
is  usually  allowed  a  limited  time  within  which  to  comply  with 
the  terms  of  sale,  and  in  case  of  his  neglect  or  refusal  so  to 
do  within  the  time  limited  the  property  may  then  be  resold 
on  account  of  the  first  purchaser.  Where  the  terms  of  sale 
presented  by  the  auctioneer  as  forming  the  conditions  of  the 
contract  contain  a  provision  of  this  character  the  legal  effect 
of  the  same  is  to  extend  to  the  vendee  an  option  of  taking  the 
estate  after  it  is  bid  off  by  him  or  having  it  sold  again  on 
his  account.  If  upon  resale  it  produces  more  than  on  the  first 
sale  the  surplus  would  belong  to  him;  if,  on  the  other  hand, 
it  should  sell  for  less,  the  difference  would  form  a  loss  to 

59  Teaffe   v.    Simmons,   11   Allen  the   deposit   money,   and   the   pur- 

(Mass.),  342.  chaser    through    whose    acts    the 

'''I  Ellison  V.  Kerr,  86  111.  427.    In  auctioneer    had    been    induced    to 

this  case  nearly  five  months  after  pay  the  deposit  to  the  vendor  suf- 

an  auction  sale  of  land  the  vendor  fered    two    years    to    elapse    after 

gave  the  purchaser  a  contract  of  the    sale    before    making    demand 

sale  acknowledging  the  receipt  of  for   the    deposit.      Held,   that   the 


Sales  ry  auction.  313 

which  he  wuuUl  be  cxijosi-d.  and  lor  \vhu:h  an  aclion  wouhJ 
lie  aj^ainst  him  by  the  vendor ;'"*i  but,  it  seems,  no  action  could 
be  maintained  b.v  the  vendor  a<j;ainst  such  ])urchaser  for  a 
breach  of  the  contract  until  a  resale  had  been  had  and  a  deficit 
ascertained/'" 

Hut  while  the  rule  is  well  settled  that  when  a  vendee  has 
refused  to  coniplv  with  liis  bid,  and  complete  the  sale,  tlu' 
land  mav  be  resold  loi-  liis  account  and  risk,  there  is  yet  some 
confusion  with  respect  to  the  method  of  ])rocedure  so  as  to 
render  the  result  of  the  resale  legally  bindinti;  upon  him.  It 
would  seem  that  in  order  to  conclude  such  bidder  the  resale 
must  be  made  without  unreasonable  delay,  with,  the  same 
publicity,  and,  as  far  as  possible,  under  the  same  conditions, 
as  the  first  sale,  and  with  an  honest  effort  to  secure  the  best 
price  obtainable.  The  defaultinj;  bidder  should  further  have 
notice  that  fhe  resale  will  be  made  and  at  his  risk.  The 
reason  for  this  is,  as  above  indicated,  that  the  land  is  regarded 
in  some  sense  as  the  property  of  the  bidder  and  the  result  of 
the  resale  is  in  the  nature  of  an  adjudication  against  him; 
hence,  before  he  can  be  charged  with  a  deficiency  he  should 
be  afforded  an  opportunity  to  protect  his  interest  and  prevent 
a  sacrifice  of  the  property.  In  the  event  of  a  failure  to  give 
such  notice  the  vendee  has  a  right  to  assume,  if  the  land  is 
again  sold,  that  the  vendor  has  elected  to  retain  same  and 
deal  with  it  as  his  own.  As  to  the  extent  of  the  notice  the 
authorities  do  not  seem  clear.  In  some  cases  notice  of  the 
time  and  place  of  the  resale  has  been  held  necessary,  but  the 
better  rule  would  seem  to  be  that  where  there  is  a  notice  of  an 
election  to  resell  and  to  hold  the  bidder  for  any  deficiency, 
no  other  or  further  notice  is  necessary.^^^ 

general    rule   that   the   auctioneer  Kempner  v.  Heidenheimer,  65  Tex. 

Is  the  stake-holder  of  both  parties  587. 

had  ceased  to  apply,  and  the  pur-  C2  Webster   v.   Hoban,   7   Cranch 

chaser  could    not  recover   the   de-  (U.  S.),  399. 

posit.  '■••'  Lewis  v.  Greider,  51  N.  Y.  236; 

"Green  v.  Ausley,  92  Ga.  647;  Green  v.  Ansley,  92  Ga.  647. 


PART  II. 
INCIDENTS  OF  THE  CONTRACT, 


CHAPTER    IX. 

INVESTIGATING     THE     TITLE. 


Continued  —  Possession  of 

prior  vendors. 
Liens  and  incumbrances. 
Mortgages. 
Judgment  liens. 
Decrees. 

Mechanics'  liens. 
Vendors'  liens. 
Real    estate    charged    with 

legacies. 
Real    estate    charged    with 

debts. 
Easements  and   servitudes. 
Pending  litigation. 
Partnership  property. 
Notice   to  agent. 
Joint  purchasers. 
Rebutting    presumption    of 

notice. 


§  258.  General  principles.  Under  the  usages  now  prevailing 
it  is  customary,  upon  the  negotiation  of  a  trade,  to  allow  the 
yendee  a  sufficient  time  to  investigate  the  character  of  the  title 
he  is  purchasing,  and  provision  for  such  investigation  is  ordi- 
narily incorporated  in  the  agreement  of  sale.  There  is  no 
positive  law  upon  the  subject,  and  the  time  is  generally  vari- 
ously fixed  at  from  ten  to  sixty  days,  adapting  itself  to  the 
exigencies  of  the  occasion  or  the  convenience  of  the  parties. 
Sometimes  this  interim  between  the  commencement  and  com- 
pletion of  sale  is  made  essential  by  the  terms  of  the  agreement, 
and  if  the  vendee  fails  to  comply  with  the  terms  of  the  contract 
within  the  time  stipulated  it  gives  to  the  vendor  a  right  of 
forfeiture  of  the  contract  and  of  whatever  may  have  been 

314 


258. 

General  principles. 

§273. 

259. 

Doctrine  of  caveat  emptor. 

2G0. 

Doctrine  of  notice. 

274. 

261. 

Constructive  notice. 

275. 

262. 

When  purchaser  is  charge- 

276. 

able  with  notice. 

277. 

263. 

What  notice  sufficient. 

278. 

264. 

What  will  put  a  party  on 

279. 

inquiry. 

280. 

265. 

Notice  from  registration. 

266. 

Recitals  in  deeds. 

281, 

267. 

Inquiries  in  pais. 

268. 

Notice    of    unrecorded    in- 

282. 

struments. 

283. 

269. 

Notice  of  parol  agreements. 

284, 

270. 

Notice  of  fraud. 

285, 

271. 

Possession   as   an   evidence 

286, 

of  title. 

287, 

272. 

•Continued  —  Character    of 
possession. 

INVESTIGATING    THE    TITLE.  31.' 

paid  liy  \\;iy  of  cjiihcsIiihumn  ;  Itiil  unless  lliis  coiist'iiiH-int' 
clcjirly  lollous  ;is  ;i  matter  of  fair  <-oiiHlni(li()ii,  lime  will  iinl 
be  (Icciiied  essential,  and  until  llie  ven<l(H-  lias  put  the  vendt-c 
in  delaull  l»y  some  icco^^nized  lc;^al  method,  ov  unh'ss  IIk* 
vendee  has  N'olnnlarily  al)andone(l  the  nndeitaUinj^',  lie  will  Ite 
jiermitled  to  complete  the  imrchase  within  ;iny  |-easonal»le 
time  aflei'  its  incei»tion. 

The  duly  of  careCnl  iiKpiify  into  tlie  lille  is  iiiiiiosed  upon 
the  vendee  by  law;  and  tiiis  duty  he  cannot  fore^^o,  unless  l»y 
reason  of  the  representations  of  the  vendor  he  is  ])revaile<l 
upon  so  to  do.  The  law  j)resumes  tliat  every  man,  not  beiii*; 
under  any  le^al  disability,  will  make  due  investij^ation  with 
respect  to  the  thin<;-  he  is  about  to  jiurchase,  and  that  he  buys 
with  full  knowledge  of  all  the  facts  that  such  investi^^alion 
would  disclose;  and  while  he  is  permitted  to  recover  uj)on  any 
ex[)ress  agreement  that  he  may  have  taken  by  way  of  cove- 
nant, yet  if  he  fails  to  so  protect  himself  he  buys  at  liis  jteril, 
and  cannot  afterwards  be  heard  to  com]dain  unless  some  fraud 
has  been  practiced  upon  him. 

The  usual  means  provided  for  an  iuipiiry  into  the  title  is 
an  abstract  of  the  public  records,  as  it  is  usually  called,  an 
abstract  of  the  title;  but  in  case  this  is  not  furnished  the 
duty  of  examining;'  the  records  will  devolve  upon  the  vendee, 
and  he  is  char^(Ml  with  constructive  notice  of  every  fact  which 
such  an  investigation  would  have  disclosed.  Jn  addition  there- 
to he  must  also  notice  the  character  of  the  possession  of  the 
premises;  and  if  an^'  infoi'mation  is  brought  home  to  him, 
calculated  to  impart  knowledge  or  to  apprise  him  of  any 
rights  or  interests  in  conflict  with  those  which  he  is  about  to 
l)urchase,  he  must  duly  prosecute  an  imjuiry  in  relation 
thereto. 

In  the  following  paragraphs  nothing  more  than  a  general 
survey  of  the  subject  is  attempted;  and  in  order  to  avoid 
repetition  a  number  of  tojjics  which  properly  come  within 
the  scope  of  the  chapter  are  omitted,  as  they  can  be  more 
a<lvantageously  treated  in  connection  with  other  matters  to 
which  they  directly  relate,  and  to  which  the  reader  is 
referred.^ 

1  See  post,  "Fraudulent  Convey-    ceeding  chapter  on  "Objections  to 
ances;"    "Conveyances    subject    to    Title." 
Incumbrance,"   etc.;    also  the  sue- 


316  INVESTIGATING    THE    TITLE. 

§  259.  Doctrine  of  caveat  emptor.  The  law  will  not  extend 
its  protection  to  those  who,  through  negligence  or  inattention 
to  their  business,  suffer  an  advantage  to  be  taken  of  their 
credulity,  nor  excuse  them  for  a  neglect  to  examine  and  by 
proper  observation  to  ascertain  whether  that  which  they  ])ro- 
l)ose  to  purchase  corresi)ondsto  their  desires  or  anticipations. 
It  is  the  vigilant  whom  the  law  regards,  not  those  who  sleep 
on  their  rights;  and  if,  through  inattention,  neglect  or  blind 
credulity,  it  turns  out  that  the  title  of  land  is  defective,  or  that 
the  property  itself  is  inadapted  to  the  purposes  for  which  it 
was  purchased,  the  vendee  will  ordinarily  be  entitled  to  no 
relief,  at  law  or  in  equity,  except  as  he  may  find  it  through 
the  covenants  he  has  received;  and  if  he  has  further  neglected 
to  protect  himself  by  covenants,  he  is  practically  without  a 
remedy  on  a  subsequent  failure  of  title.- 

This  doctrine  is  known  in  the  law  by  the  terin  caveat  emptor. 
The  maxim,  'iet  the  purchaser  beware,"  although  now  in  very 
common  use  in  connection  with  sales  of  land,  originally  applied 
only  to  sales  of  chattels  and  its  more  peculiar  significance 
had  reference  to  questions  of  fraud  and  implied  warranty.  In 
time,  however,  the  meaning  became  extended,  and  at  present 
indicates  an  assumption  of  risk  in  sales  of  realty  as  well  as 
personalty,^  and  if  a  purchaser  buys  land  and  takes  convey- 
ance thereof  without  warranty,  he  assumes  whatever  risks 
may  attend  the  transaction,  and  so  far  the  rule  of  caveat 
emptor  may  be  said  to  apply  to  him. 

§  260.  Doctrine  of  notice.  The  duty  of  investigating  a  title 
rests  mainly  upon  that  peculiar  feature  of  law  to  which  the 
term  "notice"  has  been  applied.  The  title  of  a,  purchaser'  for 
value  cannot  ordinarily  be  impeached,  unless  he  has  had  notice 
of  the  infirmity  which  goes  to  defeat  it;  but  this  notice  does 
not  necessarily  mean  "knowledge,"  and  although  the  purchaser 
may  have  been  innocently  ignorant  in  fact,  and  from  a  moral 
point  of  view,  he  may,  nevertheless,  be  legally  chargeable  with 
knowledge  derived  from  notice.  I«I^otice  ma^',  of  course,  be 
actual;  and  in  such  case  knowledge  is  a  necessary  resultant; 
or,  it  may  be  constructive,  which  is  the  legal  equivalent  of 

2  Murray  v.  Ballou,  1  Johns.  Ch.  3  Abbott  v.  Allen,  2  Johns.  Ch. 
(N.  Y.)  566;  Abbott  v.  Allen,  2  519;  Upton  v.  Tribilcock,  1  Otto 
Johns.  Ch.   (N.  Y.)   519.  (U.  S.),  45 


INVESTIGATING    THE    TITLE.  Si"? 

actual  riolicc,  and  alllion^h  the  jicrsoii  son^^lil  to  be  affected 
tli('r('])_v  may  liavc  liad  no  nolicc  in  fact,  lie  may  yet  be  ho 
sihialed  thai  lie  is  esloppcd  to  aver  this  or  to  deny  that  he 
did  not   have  iiolice. 

Notice  is  fnrllier  chissified  ])y  the  eh'nn-ntary  writerH  as 
ex]tress  and  im|)Iied  —  the  lattci-  term  Itcinji  used  where 
notice  is  imputed  to  a  party  shown  lo  he  conscious  of  havinji 
means  of  luio\vh'<lj!;e  whicli  lie  does  not  use,  as  wln-re  he 
chooses  to  i-emain  voluntaiily  ignorant,  or  is  jirossly  negligent 
in  not  imi'suin;^  iinpiiries  su^^^^csted  by  Icnown  facts.^ 

The  fei-ms  "imjilied"  and  "constructive"  notice  are  freciueiitly 
used  as  synonymous,  yet  there  seems  to  be  a  marked  distinc- 
tion between  them.  The  former,  as  previously  remarked,  is 
an  imputation  arising  from  an  inference  of  fact;  while  the 
latter,  being  the  creature  of  positive  law,  rests  upon  strict 
legal  infei-encc.  Indeed,  we  may  with  propriety  say  that  it  is 
a  rule  rather  than  a  presumption. 

There  is  some  conflict  among  writers,  and  in  the  decided 
cases,  as  to  what  constitutes  actual  notice,  although  it  has 
been  said  that  much  of  the  difference  is  verbal  only — more 
apparent  than  real;  and  the  general  propositions  which 
directly  aft"ect  the  (juestion  are,  in  the  main,  well  agreed  upon. 
It  does  not  necessarily  mean  personal  information  or  con- 
scious knowledge,  and  may  rest  in  inference.  It  may  be  proved 
by  direct  evidence  or  it  may  be  inferred  or  implied  from  indi- 
rect evidence — circumstances — and  is  a  conclusion  of  fact, 
capable  of  being  established  by  all  grades  of  legitimate  evi- 
dence.'' 

The  doctrine  of  actual  notice  implied  by  circumstances  nec- 
essarily involves  the  rule  that  a  purchaser,  before  buying, 
should  clear  up  the  doubts  which  ap])arentl3'  hang  upon  the 
title  by  making  due  iuijuiry  and  investigation.    If  a  party  has 


*Knapp  V.   Bailey,   79   Me.   195;        r.  Blatchley  v.  Osborne,  33  Conn. 

Hovey  v.  Blanchard.  13  N.  H.  145;  226;   Buck  v.  Paine,  50  Miss.  648: 

Williamson    v.    Brown,    15    N.    Y.  Rogers  v.  Jones,  8  N.  H.  264;  Hull 

354;     Curtis    v.     Mundy,     3     Met.  v.    Noble,   40   Me.   480;    Maupin   v. 

(Mass.)    405;    Hoppin   v.   Doty,   25  Emmons,    47    Mo.    306;     Maul    v. 

Wis.  573;  Eck  v.  Hatcher.  58  Mo.  Rider,    59    Pa.    St.    171;    Kirsh    v. 

235;    Carter    v.   Hawkins,    62   Tex.  Tozier,  143  N.  Y.  390;   Jennings  v. 

393;    Hoy   v.    Bramhall,    19    N.    J.  Ford.  118  Mo.  296;  Mercantile  Nat. 

Eq.  563.  Bank  v.  Parsons,  54  Minn.  56. 


318  INVESTIGATING    THE    TITLE. 

knowledge  of  such  facts  as  would  lead  a  fair  aud  prudent  man, 
using  ordinary  caution,  to  make  further  inquiries  and  he 
avoids  the  incjuiry,  he  is  chargeable  with  notice  of  the  facts 
which  by  ordinary  diligence  he  would  have  ascertained;  he 
has  no  right  to  shut  his  eyes  against  the  light  before  him,  nor 
to  disregard  the  signals  seen  by  him;  and  if  he  does  so  it  may 
be  well  concluded  that  he  is  avoiding  notice  of  that  which  he 
in  reality  believes  or  knows.^  Hence,  it  is  said,  actual  notice 
of  facts  which  to  the  mind  of  a  prudent  man  indicate  notice 
is  proof  of  uoticeJ 

The  same  facts  may  sometimes  be  such  as  to  prove  both 
actual  and  constructive  notice;  that  is,  a  court  might  infer 
constructive  notice  and  a  jury  actual  notice  from  the  facts, 
while  on  the  other  hand  there  may  be  cases  where  the  facts 
show  actual  notice  when  they  do  not  warrant  the  inference 
of  constructive  notice.^ 

It  may  be  stated  as  a  general  rule,  however,  that  one  claim- 
ing title  to  land  by  a  deed  purporting  to  be  made  for  a  valua- 
ble consideration  is  presumed  to  be  a  purchaser  in  good  faith 
without  notice,  and  while  the  fact  of  notice,  may  be  inferred 
from  circumstances  as  well  as  proved  by  direct  evidence,  the 
proof  must  be  such  as  to  affect  the  conscience  of  the  purchaser 
and  fix  upon  him  the  imputation  of  bad  faith,  while  the  burden 
of  proof  ordinarily  will  rest  upon  the  party  attacking  the 
transaction.'' 

Every  species  of  notice  is  ineffectual  as  a  restraint  on  exist- 
ing rights,  and  can  only  operate  on  those  rights  which  are  sub- 
sequently acquired. 

§  261.  Constructive  notice.  The  law  of  notice  derives  what- 
ever of  subtilty  or  intricacy  it  may  possess  from  that  part 
technically  known  as  constructive  notice,  which  is  not  notice 

6  See  Lamb  v.  Pierce,  113  Mass.  seen  upon  the  records  by  a  pur- 
72;  Williamson  v.  Brown,  15  N.  Y.  chaser  who  thereby  receives  actual 
354;  Rogers  v.  Jones,  8  N.  H.  264;  notice.  Hastings  v.  Cutler,  24  N. 
Bartlett    v.    Glasscock,    4    Mo.    62;  H.  481. 

Blatchley  v.  Osborn,  33  Conn.  226.        o  See   Anthony  v.    Wheeler,    130 

7  3  Wash.  Real  Prop.  335.  111.   128;    Coleman   v.   Barklew,   27 

8  As  where  a  deed,  which  by  N.  J.  L.  357;  Vest  v.  Michie,  31 
reason  of  inherent  defects  or  ir-  Gratt.  (Va.)  149;  Hiller  v.  Jones, 
regularity    of    recording,    fails    to  66  Miss.  636. 

impart  constructive  notice,  is  yet 


INVESTIGATING    THE    TITLE.  319 

at  all,  but  rather  a  Ic^al  inftTeuc-e  from  established  factBj^'' 
and  while  (ouits  and  writers  have  at  different  times  made  gen- 
eral .stateiiieiils  calculated  (o  outline  its  character,  no  very 
clear  exjioHition  of  its  real  nature  has  ever  been  nuide;  nor 
has  any  writer  been  able  to  foniiulale  any  jtrecise  rule  as  to 
what  does  or  does  not  constitute  ccnist luctive  notice,  because 
uii<juesti(»nably  that  which  may  iKjt  affect  one  luan  may  be 
abundantly  sutlicient  to  affect  another;  and  so,  as  Mr.  Su;4den 
observes,  "every  one  wlio  has  attempted  to  define  wlnii  it  is 
has  declared  his  inability  to  satisfy  even  himself."""  The  test 
j;cnerally  apidied  by  American  courts  has  been  whether  the 
facts  are  sufficient  to  jiut  a  prudent  man  on  inipiiry,  and 
whether  an  incjuiry  has  been  prosecuted  with  reasonable  care 
and  diligence  ;i-  for  whatever  is  sufficient  to  i)ut  a  party  upon 
incpiiry  which  would  lead  to  the  truth  is,  in  all  respects,  ecjual 
to  and  must  be  regarded  as  notice;  and  if  a  purchaser  acts  in 
bad  faith  and  wilfully  or  negligently  shuts  his  eyes  against 
those  lights  which,  with  proper  observation,  would  lead  liim  to 
a  knowledge  of  facts  affecting  the  subject  of  his  purchase,  he 
will  be  held  to  have  notice  of  such  facts.^^ 

A  purchaser  is  constructively  cliarged  with  notice  of  every- 
thing that  appears  on  the  face  of  the  deeds  constituting  his 
chain  of  title ;'^   but  he  is  not  bound  to  inquire  into  collateral 

10  Birdsall  v.  Russell,  29  N.  Y.  two  joint  owners  is  chargeable 
220.  with  notice  of  the  interest  of  the 
112  Sugd.  Vend.  570.  other,  as  shown  by  the  convey- 
1^  Hull  V.  Noble,  40  Me.  459;  ance  to  his  vendor.  Campbell  v. 
Littleton  v.  Giddings.  47  Tex.  109;  Roach,  45  Ala.  667.  But  where  two 
Helms  V.  Chadbourne,  45  Mo.  60;  persons  hold  undivided  interests  in 
Warren  v.  Swett,  31  N.  H.  332;  the  same  parcel  of  land  by  sep- 
Allen  V.  Poole,  54  Miss.  323;Briggs  arate  deeds,  of  different  dates  and 
v.  Taylor,  28  Vt.  180;  Blanchard  v.  from  different  grantors,  a  person 
Ware,  43  Iowa,  530;  Brown  v.  dealing  in  good  faith  with  one  of 
Volkening,  64  N.  Y.  76;  Edwards  them  in  reference  to  his  interest 
V.  Thompson,  71  N.  C.  177;  Pell  is  not  bound  with  notice  that  the 
v.  McElroy,  36  Cal.  268.  property  is  partnership  property 
i-i  Chicago,  etc.  R.  R.  v.  Ken-  from  the  knowledge  merely  that 
nedy,  70  111.  350;  Barnard  v.  Cam-  the  holders  thereof  are  partners, 
pau,  29  Mich.  162;  Littleton  v.  Gid-  and  make  use  of  the  premises  for 
dings,  47  Tex.  109;  Cunningham  v.  partnership  purposes,  where  noth- 
Pattee,  99  Mass.  248.  ing  on  the  record  indicates  a  part- 
it  Morrison  V.  Morrison,  38  Iowa,  nership  holding.  Reynolds  v. 
73;  Burch  v.  Carter.  44  Ala.  115.  Ruckman,  35  Mich.  80. 
Thus,    a    purchaser    from    one    of 


320  INVESTIGATING    THE    TITLE. 

circumstances.!'''  80,  also,  he  must  take  notice  of  the  contents 
of  a  deed  referred  to  in  the  conveyance  under  which  he  holds  ;ic 
yet  this  rule  does  not  re(iuire  him  to  take  notice  of  a  fact 
exhibited  in  the  deed  which  is  wholly  foreif^n  to  the  subject 
of  the  reference.!"  Further,  it  is  a  general  rule  that  a  pur- 
chaser is  constructively  charged  with  notice  of  all  facts 
exposed  upon  the  public  records  w'hich  directly  affect  or  lie  in 
the  line  of  the  title  he  is  receiving. 

The  general  rule  that  a  purchaser  of  land  is  chargeable 
with  constructive  notice  of  all  duly-recorded  conveyances  of 
such  land  executed  by  his  grantor,  applies  to  equitable  as  well 
as  to  legal  estates.!^ 

§  262.  When  purchaser  is  chargeable  with  notice.  It  is 
difficult  if  not  impossible  to  lay  down  any  general  rule  as  to 
what  facts  will  in  every  case  be  sufficient  to  charge  a  party 
with  notice  or  put  him  on  inquiry.  It  may  be  said,  however, 
that  a  purchaser  buying  real  property,  of  the  title  to  which 
there  must  be  evidence  in  writing,  is  chargeable  with  notice  of 
any  infirmity  of  his  title  which  the  writing  discloses.!'^  If  he 
has  notice  of  a  prior  claim,  or  equity,  or  of  facts,  which  if 
followed  up  would  discover  the  truth,  he  is  put  under  a  duty 
to  make  the  investigation;  and,  if  he  fails  to  do  so,  he  is 
chargeable  with  knowledge  which  the  inquiry  w^ould  have  dis- 
closed.20  So,  also,  a  purchaser  pendente  lite  is  bound  by  the 
result  of  the  suit,  and  chargeable  with  notice  of  every  fact  per- 
taining thereto.-!     The  purchaser  of  land  from  a  vendor  in 

15  Burch  V.  Carter,  44  Ala.  115.  the   vendor   or    any   other   person 

iG  Morrison  v.  Morrison,  38  Iowa,  about  the  title,  nor  called  for  an 

73;  Deason  v.  Taylor,  53  Miss.  697.  inspection  of  the  title  deeds  or  an 

1"  Thus,  it  does  not  require  him  abstract  thereof,  but  relied  on  the 

to  take  notice  that  the  deed  has  possession    of    the    vendors,    and 

incorporated    in   it   a   bill   of   sale  their    assertion    of    title    and    the 

of  personalty  in  which  a  lien   is  warranty  clause  contained  in  the 

attempted   to    be   retained   by   the  deed    of    conveyance.      Witter    v. 

grantor.      Mueller    v.    Engelin,    12  Dudley,  42  Ala.  616. 

Bush  (Ky.),  441.  i9  Corbitt  v.  Clenny,  52  Ala.  480; 

18  Digman   v.   McCollum,   47   Mo.  Stidham  v.  Matthews,  29  Ark.  650. 

372.     A  purchaser  of  a  large  tract  20  Buck  v.   Paine,  50   Miss.    648; 

of  land   for  a  valuable   considera-  Carter  v.    Portland,    4    Oreg.    339; 

tion,   held   chargeable   with   notice  Finch  v.  Beat,  68  Ga.  594;    Brink- 

of  an  equitable  title  under  a  trust  man  v.  Jones,  44  Wis.  498. 

created  by  a   decree   in  chancery,  21  Holman  v.  Patterson,  29  Ark. 

he    having   made   no   inquiries   of  357;    Kern   v.    Hazlerigg,    11    Ind. 


INVESTIGATING    THE    TITLE. 


321 


possession  who  claiin.s  il  ii»  his  own,  but  wlio  has  no  It-j^al  title 
t'xcept  as  triistci'  for  another,  is  chari^'cable  witli  notice  of  the 
tinst;-2  and  generally  a  purchaser  is  held  alTected  with  notice 
of  all  that  is  i»ateut  on  an  examination  of  the  premises  he  is 
about  to  buy.-"* 

The  possession  of  land  by  a  person  at  the  time  of  his  death 
is  prima  facie  evidence  of  ownership  at  that  time,  and  a  sub- 
se(pu'nt  purchaser  of  the  le<;al  title  will  be  conclusively  pre- 
sumed to  know  that  whatever  rij^'hts  such  deceased  person  had 
in  the  land,  not  disposed  of  by  will  and  of  an  inheritable  char- 
acter, devolved  on  his  heirs;  and  his  possession  beinj^  con- 
structive notice  of  his  ri<i;hts  at  the  time  of  his  death,  it 
becomes  the  duty  of  such  purchaser  to  inquire  of  his  heirs  and 
ascertain  the  ex  lent  of  that  interest.^-* 

§  263.  What  notice  sufficient.  Whatever  fairly  i)uts  a  party 
on  incjuiry  is  re«;arded  as  sullieient  notice  where  the  means  of 
knowledge  are  at  hand;^'*  and  a  i)urchaser,  whenever  he  has 
sullicient  knowledge  to  i)ut  him  on  in(]uiry,  or  where  he  has 
been  informed  of  circumstances  which  ought  to  have  led  to 
sucli  iiKjuiry,  is  deemed  to  have  been  sufticiently  notificMl  to 
(l('[)rive  him  of  the  character  of  an  innocent  purchaser.-*^  It 
is  the  duty  of  every  person  who  may  have  knowledge  or  infor- 


443;  Turner  v.  Babb,  60  Mo.  342; 
Cooley  V.  Brayton,  16  Iowa,  10. 

--  Jones  V.  Shaddock,  41  Ala. 
362;  Smith  v.  Walter,  49  Mo.  250; 
Ryan  v.  Doyle,  31  Iowa,  53.  But 
if  a  mere  want  of  caution  in  mak- 
ing the  purchase,  as  distinguished 
from  fraudulent  and  wilful  blind- 
ness, is  all  that  can  be  imputed  to 
him,  he  will  not  be  regarded  as  a 
trustee  in  invitum  so  as  to  charge 
hira  with  the  rents  and  profits  of 
the  land.  Dudley  v.  Witter,  46 
Ala.  664. 

23  This  principle  finds  many   11- 


title.  Held,  that  a  creditor  whose 
judgment  lien  attached  while  this 
notice  was  posted  upon  the  prem- 
ises was  thereby  notified  of  the 
interest  of  the  party  claiming  title, 
since  upon  inquiry  of  the  agents 
he  could  have  ascertained  the  ex- 
tent and  character  of  the  title,  and 
could  not  therefore  be  considered 
a  bona  fide  purchaser.  Hatch  v. 
Bigelow,  39  111.  546. 

^*  McVey  v.  McQuality,  97  111.  93. 

'•<  Booth  V.  Barnum,  9  Conn.  286; 
Wright  V.  Ross,  36  Cal.  437;  Nute 
V.  Nute,  41  N.  H.  60;    Stevens  v. 


lustrations.    The  agent  of  a  party    Goodenough,  26  Vt.  676;   William- 


claiming  title  to  real  estate  in  Chi- 
cago put  upon  the  premises  a 
board  on  which  was  printed  "For 
sale  by  S.  H.  Kerfoot  &  Co.,  48 
Clark    St."      Kerfoot    &    Co.    were 


son  V.  Brown,  15  N.  Y.  354;  Parker 
V.  Foy,  43  Miss.  260. 

2"  Pendleton  v.  Fay.  2  Paige  (N. 
Y.),  202;  Price  v.  McDonald,  1  Md. 
415;   Centre  v.  Bank,  22  Ala.  743; 


the  agents  of  the  party  claiming    Ringgold  v.  Waggoner,  14  Ark.  69; 

21 


322  INVESTIGATING    THE    TITLE. 

Illation  of  facts  siitKcient  to  put  a  prudent  man  on  inquiry,  as 
to  the  existence  of  some  right  or  title  in  conflict  with  that  he 
is  about  to  purchase,  to  prosecute  the  same,  and  to  ascertain 
the  extent  of  such  prior  right;  and  if  he  wholly  neglects  to 
make  the  inquiry,  or,  having  begun  it,  fails  to  prosecute  it  in 
a  reasonable  manner,  the  law  will  charge  him  with  knowledge 
of  all  facts  that  such  inquiry  would  have  afforded.-'^  A  pur- 
chaser is  bound  to  take  notice  of  all  recitals  in  the  deed 
through  which  the  title  is  derived,^^  and  is  affected  with  notice 
of  every  matter  or  thing  stated  in  the  several  conveyances 
constituting  his  chain  of  title.^'-^  All  such  statements  and 
recitals  are  sufficient  to  raise  an  inquiry,  and  the  correspond- 
ing duty  is  thrust  upon  the  purchaser  to  investigate  and  fully 
explore  everything  to  which  his  attention  is  thereby  directed.^*^ 
Notice,  to  bind  a  purchaser,  need  not  consist  of  positive 
infonnation,  for  any  fact  that  would  put  an  ordinarily  prudent 
man  on  inquiry  will  suffice  ;2i  nor  is  it  essential  that  notice  of 
an  equitable  interest  should  come  from  the  interested  party 
or  his  agent,  for  such  notice  may  be  imparted  aliunde,  pro- 
vided it  is  of  a  character  likely  to  gain  credit.^-  Vague  rumors 
or  mere  surmises  are  insufficient  in  themselves;  but  where 
parties  assume  to  speak  from  knowledge,  and  jjarticularly 
when  such  parties  stand  in  situations  which  may  reasonably 


Shepardson  v.  Stevens,  71  111.  646;  time  for  the  payment  of  the  pur- 
Brown  V.  Valkening,  64  N.  Y.  76;  chase  money,  as  stated  .n  the  deed, 
McLeod  V.  Bank,  42  Miss.  99;  Shat-  has  elapsed  does  not  authorize  him 
well  V.  Harrison,  30  Mich.  179.  to  presume  that  it  was  paid.  Dea- 
27  Blaisdell  v.  Stevens,  16  Vt.  son  v.  Taylor,  53  Miss.  697;  and 
179;  Spofford  v.  Weston,  29  Me.  see  Morrison  v.  Morrison,  38  Iowa, 
140;  Blatchley  v.  Osborn,  33  Conn.  73. 

226;    Warren   v.   Sweet,   31   N.  H.        si  Meier  v.  Blume,  80  Mo.  179. 
332;  Hoy  V.  Bramhall,  19  N.  J.  Eq.        32  As,    where   a    party   about   to 

563;  McGee  v.  Gindrat,  20  Ala.  95;  purchase  land  from  a  widow,  the 

Brinkman  v.   Jones,  44  Wis.  498;  legal   title   of   which   was   in   her, 

Erickson  v.  Rafferty,  79  111.  209.  was  informed  by  the  grandfather 

2s  Deason  v.  Taylor,  53  Miss.  697.  of    her    minor    children    that    the 

-»  Burch  V.  Carter,  44  Ala.  115.  equitable    title    had    been    in    the 

30  Thus,  if  the  deed  recites  that  deceased  husband  and  was  then  in 

the   sale   is   made   on   a   credit,   a  his    heirs,    held,    that    the    notice 

subsequent  purchaser  is  bound  to  came  from  a  proper  person.  Butch- 

inquire      whether     the      purchase  er  v.  Yocum,   61   Pa.  St.   168. 
money  has  been   paid.     That  the 


INVESTIGATING    THE    TITLE.  323 

be  prt'sunicd  to  allord  llifin  the  iiu-aiis  of  knowled^^-,  the  pur- 
ehaser  cannot  disregard  the  infonnation  so  obtained.'*^ 

W'liile  no  jx-rson  is  at  liberty  to  remain  intentionally 
ignorant  of  facts  relating  to  his  purchase  within  his  reach,  and 
then  claim  j)rolection  as  an  innocent  purchaser,  yet  it  would 
seem  that  he  is  not  necessarily  alTected  with  notice  of  a  prior 
adverse  e(]uity  received  from  a  stranger  to  the  transactions,  or 
I)erson  not  interested  in  the  proiKM-ty  ;-*^  nor  will  vague  rejjorts, 
mere  rumors  or  hearsay  concerning  such  ecpiity,  and  commu- 
nicated by  such  person,  be  sullicient  to  put  him  on  intpiiry  and 
charge  him  with  knowledge  of  the  facts  that  he  might  thereby 
have  learned.3^  So,  also,  a  mere  statement  by  a  third  person 
that  the  title  was  void  will  not  in  itself  charge  the  buyer 
with,  notice  of  facts  not  stated  ;'^^  and  generally,  if  the  informa- 
tion be  of  an  indefinite  character,  and  does  not  in  any  manner 
indicate  the  means  by  which  the  truth  of  the  matter  can  be 
ascertained,  such  infonnation  will  not  amount  to  notice,  either 
actual  or  constructive.^^ 

It  has  been  held,  however,  that  where  a  party  has  heard  of 
a  sale  of  land  before  he  purchased,  and  from  a  source  entitled 
to  reasonable  credit,  and  under  circumstances  not  likely  to  be 
forgotten,  a  duty  would  devolve  upon  him  of  tracing  out  the 
matter  and  ascertaining  its  truth.^s 

§  264.  What  will  put  a  party  on  inquiry.  As  to  what  will 
be  a  sufficiency  of  facts  to  excite  inquiry  no  positive  rule  can. 
very  well  be  established,  as  each  case  depends  largely  upon  its 

33  Curtis  V.  Mundy,  3  Met.  486;  Hottenstein  v.  Lerch,  104  Pa. 
(Mass.)  405;  Butcher  v.  Yocum,  61    St.  454. 

Pa.  St.  168;  Lawton  v.  Gordon.  37  3c  Ratteree  v.  Conley,  74  Ga.  153; 

Cal.    202.     In   this   case    the   pur-  Hall  v.  Livingstone,  3  Del.  Ch.  348. 

chaser  was  notified  by  the  record-  ■^~  As   where    a   stranger   to   the 

ing  officer  that  a   deed   had  been  title,   while  the   person   proposing 

filed    with    him    and    then    with-  to  purchase  is  searching  the  rec- 

drawn.  ords    for    information,    tells    him 

34  Parkhurst  v.  Hosford,  10  Saw-  there  is  something  wrong  about 
yer  (C.  Ct.),  401;  Flagg  v.  Mann,  the  title,  but  gives  no  names  or 
2  Sumn.  (C.  Ct.)  486;  Butler  v.  other  facts  pointing  out  a  course 
Stevens,  26  Me.  484;  Woodworth  of  inquiry.  Slattery  v.  Rafferty, 
V.  Paige.  5  Ohio  St.  70.  93    111.    277;    and    see    Lamont    v. 

3'-' Ratteree  v.  Conloy,  74  Ga.  153;  Stimson.  5  Wis.  443:  Mulliken  v. 
Flagg  v.  Mann.  2  Sumn.    (C.  Ct.)    Graham.  72  Pa.  St.  4S4. 

88  Cox  V.  Milner,  23  111.  476. 


324  INVESTIGATING    THE    TITLE. 

own  facts  and  attendant  circumstances.  Indeed,  there  is  a 
great  inconsistency'  in  the  cases  on  this  i)oint.  In  general,  a 
l)artv  in  possession  of  certain  information  will  be  chargeable 
with  a  knowledge  of  all  facts  which  an  inquiry,  suggested  by 
such  information  prosecuted  with  diligence,  would  have  dis- 
closed to  him.^'^  Thus,  when  a  i)urchaser  has  notice  of  a  deed 
alfectiug  the  property  to  be  purchased,  this  is  sufficient  to  put 
him  on  inquiry,  and  he  is  presumed  to  have  notice  of  the  con- 
tents of  that  deed  and  of  all  other  deeds  to  which  it  refers.**^ 

Possession  of  land  by  one  whose  deed  is  not  registered  is 
notice  of  his  title,  whatever  such  title  may  be  worth,  and  is 
suflScient  to  put  a  subsequent  purchaser  on  inquiry.**^  So, 
also,  the  possession  of  a  tenant  is  sutHcient  notice  of  his  land- 
lord's title  to  put  a  person  dealing  with  the  property  on 
inquiry;^-  and  the  law  will  charge  such  person  with  notice  of 
all  the  facts  which  he  might  have  ascertained  by  using  proper 
diligence  in  inquiring.-^^  So,  also,  where  a  tenant  in  possession 
agrees  to  purchase  the  premises  his  possession  amounts  to 
notice  of  his  equitable  title  to  a  subsequent  grantee  of  his 
landlord.^^  Possession  of  land  under  an  unrecorded  agree- 
ment with  the  owner  to  purchase  the  same  is  notice  sufficient 
to  put  others  on  inquiry,  and  if  they  buy  of  the  owner  the  con- 
tract of  purchase  may  be  enforced  against  them  in  equity .'^^ 

It  has  been  held  that  a  purchaser  is  charged  with  notice 
that  his  grantor  held  by  what  equity  must  declare  to  be  an 

30  Wilson  V.  Hunter,  30  Ind.  466.  ^i  Warren   v.   Richmond,   53   111. 

One  who  "knew  by  report"  when  52;    Perkins   v.    Swank,    43    Miss, 

he  purchased  land  that  there  was  349;  Galley  v.  Ward,  60  N.  H.  331; 

a  mortgage  upon  It  is  chargeable  Phillips   v.    Costley,   40    Ala.    486; 

with  notice  of  such  mortgage  if  a  Sears  v.  Munson,  23  Iowa,  380. 

valid  one,  although  the  report  also  *^  Edwards  v.   Thompson,  71  N. 

stated    that    such    mortgage    was  C.  177;   Cunningham  v.  Pattee,  99 

void.     Pringle   v.    Dunn,   37    Wis.  Mass.  248;  Kerr  v.  Day,  14  Pa.  St. 

449.    A  purchaser  who  at  the  time  112 ;   Conlee  v.  McDowell,  15  Neb. 

of   sale   is   in   possession   of   facts  184. 

which    would    put    an    ordinarily  43  O'Rourke  v.  O'Conner,  39  Cal. 

prudent  man  upon  inquiry,  as  to  442;  Dickey  v.  Lyon,  19  Iowa,  544. 

the  existence  of  vendor's  lien  upon  -n  Coari  v.  Olsen,  91  111.  273. 

the    property    purchased,    will    be  •»•">  Moss  v.  Atkinson,  44  Cal.  317; 

held   to  take   subject   to  the   lien.  Strickland  v.   Kirk,  51  Miss.  795; 

Major  V.  Bukley,  51  Mo.  227;  and  but  see  Rogers  v.  Hussey,  36  Iowa, 

see  Clark  v.  Fuller,  39  Conn.  238.  664. 

40  Green  v.  Early,  39  Md.  223. 


INVESTIGATING    THE    TITLE.  325 

invalid  deed,  when  such  ^mmiUoi-  was  out  of  and  never  liad 
been  in  possession,  and  olheis  had  controlled  the  property  in 
many  ways  for  yeais,  and  when  an  examination  of  the  rej;is- 
try  of  deeds  wonhl  have  shown  conveyances  inconsistent  with 
the  full  validity  of  the  deed  under  whi(  li  the  grantor  claimed. 
That  under  stuh  circumstances  the  duty  of  incjuiry  is  imjtera- 
tive,  and  the  facts  suHicient  to  put  a  i)rudeut  man  on  his  ^uard. 
And  so  it  is,  perhaps,  in  nearly  every  case  where  the  vendee 
l)uichases  on  the  basis  of  a  merely  nominal  title.^*' 

Mere  runH)rs  are  not  notice,  nor  do  tliey  impose  upon  a  jtui-- 
chaser  the  duty  of  inquiry."  To  alTect  him  the  information 
should  come  from  some  one  interested  in  the  estate,  or  from 
some  authoritative  source,''^  and  sliould  be  of  such  a  charac- 
ter as  to  impress  a  prudent  jx-rson  with  the  duty  of  further 
investigation.-*"  To  set  on  foot  an  incpiiry  into  the  foundation 
of  mere  rumors  would,  in  most  cases,  be  a  vain  and  imprac- 
ticable pursuit ;•''•"  and  unless  there  is  some  act  or  declaration 
from  an  authentic  source,  the  purchaser  will  not  be  held  to 
the  duty  of  in(iuiry,  nor  will  he  be  charj^eable  with  dereliction 
in  this  respect  because  he  has  failed  so  to  do.^^ 

!5  265.  Notice  from  registration.  In  the  United  States  it 
has  been  uniformly  hebl  that  the  record  of  a  conveyance,  exe- 
cuted in  conformity  to  law,  oi)erates  as  constructive  notice  to 
all  subsequent  purchasers  and  incumbrancers  claiming  under 
the  same  grantor  of  any  estate,  either  legal  or  equitable,'^-  in 
the  same  i)roperty,  provided  the  conveyance  be  one  which  the 
law  requires  or  authorizes  to  be  recorded.^^ 

The  doctrine  of  constructive  notice  under  registration  laws 

•i«'Knapp  V.   Bailey,  79   Me.   195.  14   Ga.    166;    Van   Duyne  v.  Vree- 

47  Churcher  v.  Guernsey,  39  Pa.  land,  12  N.   J.  Eq.  142. 

St.  86;    Hottenstein   v.  Lerch,  104  '•- The  earlier  cases  held  that  the 

Pa.  St.  460;  Hall  v.  Livingstone,  3  recording  acts  did  not  contemplate 

Del.  Ch.  348;   Shepard  v.  Shepard,  conveyances  of  equitable  rights  or 

36   Mich.   173;    Butler  v.   Stevens,  interests,    and    consequently    that 

26  Me.  484.  record  of  such  a  conveyance  would 

•«s  Satterfield  v.  Malone,  35  Fed.  not    be    notice;    but   this   position 

Rep.  445;   Mulliken  v.  Graham,  72  has  long  been  abandoned. 

Pa.  St.  484.  s.-iTilton   v.    Hunter,   29   Me.  29; 

•«»  Chicago  v.  Witt,  75  111.  211.  Crockett  v.    McGuire,    10   Mo.   34; 

■■oMaul  V.  Rider,  59  Pa.  St.  167.  Meni    v.    Rathbone.    21    Ind.    454; 

ni  See   Curtis   v.   Mundy.   3   Met.  Irvin  v.  Smith,  17  Ohio,  226;  Mal- 

(Mass.)    405;    Rogers  v.  Hoskins,  lory  v.  Stodder,  6  Ala.  801. 


326  INVESTIGATING    THE    TITLE. 

lias,  however,  always  been  regarded  as  a  harsh  necessity,  and 
the  statutes  which  create  it  have  always  been  subjected  to  the 
most  rijj;id  construction.-'^^  Hence  only  the  facts  as  they 
appear  on  the  face  of  the  record  are  deemed  binding  on  subse- 
quent purchasers;  and  if  from  any  cause  the  real  facts  are 
there  misstated — as  if  the  wrong  land  is  b}'  mistake  described, 
or  the  sum  for  which  a  mortgage  is  given  is  omitted  or  incor- 
rectly recorded — a  subsequent  purchaser  in  good  faith,  rely- 
ing ujjon  what  is  shown,  will  not  be  affected  by  the  error  or 
omission."'''''^  There  is  a  line  of  cases  in  apparent  conflict  with 
this  doctrine,  so  far  at  least  as  respects  errors  occurring,  in 
trauscrii)tion  and  occasioned  by  the  neglect  of  the  recording 
officer ;•"'•■•  but  the  general  doctrine  is  as  first  stated. 

Again,  the  old  doctrine  that  the  record  of  a  deed  is  con- 
structive notice  to  all  the  world  has  been  expressly  denied  in 
recent  cases,  and  the  rule  has  been  laid  down  that  such  record 
is  constructive  notice  only  to  those  who  are  bound  to  search 
for  it — as  subsequent  purchasers  and  incumbrancers,  or  others 
who  deal  with  or  on  the  credit  of  the  title  in  the  line  of  which 
the  recorded  deed  belongs.^^  But  strangers  to  the  title  are  in 
no  way  affected  by  the  record.^^ 

§  266.  Recitals  in  deeds.  The  recitals  of  a  deed  in  the  chain 
of  title  are  such  notice  to  a  purchaser  as  would  put  him  on 
Inquiry  as  to  the  nature  and  extent  of  the  matters  referred  to 
in  the  recitals,^''  and  all  persons  dealing  with  the  property  are 
bound  at  their  peril  to  take  notice  of  the  facts  as  stated  ;^o 

54  Chamberlain  v.  Bell,  7  Cal.  s?  Maul  v.  Rider,  59  Pa.  St.  167; 
292.  Straight  v.    Harris,   14   Wis.   509; 

55  Sanger  v.  Craigul,  10  Vt.  555;  Birnie  v.  Main,  29  Ark.  591;  Igle- 
Frost  V.  Beekman,  1  Johns.  Ch.  hart  v.  Crane,  42  111.  261;  McCabe 
(N.  Y.)  288;  Chamberlain  v.  Bell,  v.  Grey,  20  Cal.  509;  Hoy  v.  Bram- 
7  Cal.  292  ;|  Terrell  v.  Andrew  hall,  19  N.  J.  Eq.  563. 
County,  44  Mo.  309;  Pringle  v.  58  Maul  v.  Rider,  59  Pa.  St.  167. 
Dunn,  37  Wis.  465;  Barnard  v.  5n  Chicago,  etc.  R.  R.  Co.  v.  Ken- 
Campau,  29  Mich.  164;  Miller  v.  nedy,  70  111.  350;  Deason  v.  Taylor, 
Bradford,  12  Iowa,  14;  Peck  v.  53  Miss.  697;  Morrison  v.  Morri- 
Mallams,    10    N.    Y.    519;    Dean   v.  son,  38  Iowa,  73. 

Anderson,  34  N.  J.  Eq.  508.  co  ^tna  Ins.  Co.  v.  Corn,  89  111. 

56  See  infra,  "Registration,"  170;  White  v.  Kibby,  42  111.  510. 
where  the  subject  is  discussed  and  Technically  speaking,  a  reciial  of 
the  authorities  on  either  side  col-  one  deed  in  another  operates  as  an 
lated.  estoppel    and    binds    parties    and 


INVESTIGATING    THE    TITIJ3.  327 

but  the  recitals  in  a  deed  of  a  fact  which  may  or  may  not, 
accordinj^  to  circuiiistaiiceH,  amount  to  fraud,  will  not  affect  a 
purchaHer  for  a  valuable  couHideration  denyinj;  actual  notice 
of  the  fraud;  nor  will  circuinstanccs  amount iii^^  to  mere  huk- 
picion  be  deenu'd  notice.''' 

A^ain,  while  tlic  iiilc  that  if  a  purcliasci-  (tf  land  lias  knowl- 
cdf^e  of  any  facts  sullicicnt  (o  put  a  pnnicnt  man  on  incpiiry, 
which,  if  prosecute<l  with  ordinary  dHi;;ruce,  would  lead  to 
actual  notice  of  some  rij^hts  or  title  in  conflict  with  that  he  is 
about  to  jjurchase,  the  law  presumes  he  ma(U'  the  incpiii-y  and 
will  char<,a*  him  with  the  notice  he  would  have  received  if  he 
had  made  it,  applies  with  ])articular  force  to  statements  and 
recitals  in  deeds,  yet  such  rule  does  not  leipiire  anythinj;  more 
than  ordinary  prudence  and  dili<;ence  on  the  part  of  the  pur- 
chaser, and  cannot  be  extended  by  implication  to  charge  facts 
not  stated  or  afford  constructive  notice  of  nuitters  entirely  dis- 
connected with  the  subject  of  the  recitals."- 

§  267.  Inquiries  in  pais.  As  previously  remarked,  a  pur- 
chaser is  bound  to  exercise  due  dili'-ence  in  the  prosecution  of 
all  inquiries  that  may  be  su<2:<?ested  by  any  fact  brought  to  his 
knowledge,  and  in  the  discharge  of  such  dut^'  must  make 
iuijuiries  in  pais  as  well  as  examine  records.''^  Thus,  one  who 
has  notice  of  a  prior  unrecorded  deed  is  not  at  liberty  to  rely, 
without  further  inquiry,  ujjon  a  search  of  the  records,  and  the 
fact  that  no  such  deed  is  found  recorded;   and  one  who  pur- 


privies.      But    it    does    not    bind  cient  to  charge  a  purchaser  with 

strangers  who  claim  by  title  para-  constructive    notice    of    the    exist- 

mount    to    the    deed,    or    persons  ence  of  another  and  entirely  differ- 

claiming   by   an   adverse   title,   or  ent    lien    which   nowhere   appears 

persons  claiming  from  the  parties  of   record   as   a   charge   upon   the 

by  title  anterior  to  the  date  of  the  premises;    although  the   reference 

reciting  deed.     Carver  v.  Astor,  4  in    the    deed    was,    by   mistake,   to 

Pet.    (U.  S.)    1;    Crane  v.   Morris,  the    incumbrance    previously    dis- 

6  Pet.  (U.  S.)  598.  charged,  instead  of  to  the  one  sub- 

01  Munn  v.  Burgess,  70  111.  604.  sisting    at    the    execution    of    the 

«2  Thus,  where  the  vendor's  deed  deed.    Cambridge  Bank  v.  Delano, 

refers  to  an  incumbrance  upon  the  48    N.   Y.   326;    and   see    Muller  v. 

land,    the    fact    that    the    incum-  Engelin.  12  Bush    (Ky.),  441. 

brance    described    was    discharged  "■:<  Russell   v.    Sweezey,   22   Mich, 

upon  the  record  prior  to  the  exe-  235;  Pringle  v.  Dunn,  37  Wis.  449; 

cution    of   such   deed   is   not  suffl-  Littleton  v.  Giddings,  47  Tex.  109. 


3^8  INVESTIGATING    THE    TITLE. 

chases  with  such  notice  and  npon  such  search  is  not  entitled 
to  be  considered  a  bona  fide   purchaser/'^ 

§  268.  Notice  of  unrecorded  instruments.  The  rule  is  that 
whatever  is  sulticient  to  put  a  purchaser  upon  inquiry  is  j^ood 
notice  of  all  facts  which  the  in(]uiry  would  have  disclosed. 
Hence,  where  a  purchaser  of  land  is  in  the  possession  of  cer- 
tain knowledge  or  information  calculated  to  induce  incpiiry  he 
will  be  held  to  a  high  degree  of  care  in  making  his  investiga- 
tion of  title,  and  be  charged  with  constructive  notice  of  the 
facts  which  he  might  have  ascertained.  Thus,  if  he  knows  at 
the  time  of  his  purchase  that  another  person  has  for  years 
claimed  the  land  and  paid  taxes  thereon,  it  is  his  duty  before 
making  his  purchase  to  go  to  such  claimant  and  ascertain  from 
him  what  title  he  has;  and  if  he  fails  to  make  such  inquiry  the 
rule  as  first  stated  applies,  and  he  will  hold  subject  to  the 
equitable  rights  of  the  claimant  under  an  unrecorded  instru- 
ment.*^^ 

An  unrecorded  deed  is  as  effective  to  transfer  title  as  though 
recorded,  and  subsequent  purchasers  who  take  with  notice 
hold  in  subordination  thereto.*^^ 

§  269.  Notice  of  parol  agreements.  Actual  possession  of 
land  under  a  parol  agreement  for  purchase  is  notice  to  all  per- 
sons dealing  with  it  of  whatever  rights  the  possessor  has  in  it; 
and  a  person  buying  the  same  from  the  holder  of  the  legal 
title  will  be  treated  the  same  as  his  grantor,  and  be  subject 
to  the  same  duties  and  burdens.'^'^  But  this  rule  only  applies 
where  there  is  a  visible,  open  and  exclusive  possession  coupled 
with  the  other  incidents;  and  actual  notice  of  a  prior  parol 
agreement  to  sell,  where  the  first  purchaser  is  not  in  posses- 
sion under  his  contract,  amounts  to  nothing,  as  the  subsequent 
sale  and  conveyance  is  a  repudiation  of  the  prior  contract 
under  the  statute  of  frauds,  and  renders  the  prior  sale  void.*^^ 

§  270.  Notice  of  fraud.  A  purchaser  of  land  will  be  pre- 
sumed to  have  examined  the  title;  and  if  there  was  anything 

G4  Shotwell  v.  Harrison,  30  Mich.  Lawton   v.    Gordon,    37    Cal.    202 ; 

179.  Wilson    v.    Hunter,    30    Ind.    466; 

cr.  Redden  v.  Miller,  95  111.  336.  Lamb'  v.  Pierce,  113  Mass.  72. 

GG  Maupin    v.    Emmons,    47    Mo.        c- Webber  v.  Curtiss,  104  111.  309; 

304;    Finch    v.    Beal,    68    Ga.    594;  Bartling  v.  Brasuhn,  102  111.  441. 
Brinkman  v.  Jones,  44  Wis.  498;        cs  pickerell  v.  Morss,  97  111.  220. 


INVESTIGATING    THE    TITLE.  329 

in  any  liuk  ol'  llic  thaiu  ol  tille  .showiii;;  Iriiud,  or  KUch  cir- 
ciimstaiices  as  would  put  a  prudent  man  on  incjuiry  for  fraud, 
lie  will  be  fluir^^cd  willi  notice  of  liaiMl  if  any  cxiHted.'''** 

>;  271.  Possession  as  an  evidence  of  title.  Every  purchaser 
of  land  is  charj^id  with  the  duty  of  exercising;  dilij;ence  in 
niakin<jj  proper  examinations  touching  the  rights  and  (Mjuities 
of  others  in  respect  thereto,  and  must  be  presumed  to  investi- 
gate the  title  not  only  as  it  may  be  shown  of  record,  but  by 
incjuiries  in-  pais  as  well.''^  Actual  possession,  and  the  use 
and  occupation  of  land,  furnishes  notice  sullicient  to  put  all 
intending  purchasers  on  incpiiry  as  to  the  rights  or  claims  of 
the  possessor  thereof;'^  and  when  the  location  is  such  as  to 
render  personal  application  to  and  inquiry  of  the  occupant 
practicable,  a  purchaser  failing  to  do  so  is  no  more  entitled  to 
be  regarded  as  a  purchaser  in  good  faith  than  if  he  had 
incjuired  and  ascertained  the  real  facts  in  the  caseJ-  Yet 
the  protection  which  the  registry  law  gives  to  those  taking 
titles  or  security  upon  land  upon  the  faith  of  the  records 
should  not  be  destroyed  or  lost,  except  upon  clear  evidence 
showing  want  of  good  faith  in  the  party  claiming  their  pro- 
tection, and  a  clear  equity  in  him  who  seeks  to  establish  a 
right  in  hostility'  to  the  record  title.  Slight  circumstances  or 
mere  conjecture  should  not  suffice  to  overthrow  the  title  of 
one  who  buys  with  reliance  upon  the  record  title;  and  to 
effect  such  a  result  there  should  be  ample  proof  of  prior  title 
or  prior  equities  or  circumstances  tending  to  prove  such  prior 

CO  Hunter  v.  Stoneburner,  92  111.  Munson,  23  Iowa,  380;  Cox  v.  Pra- 
75;  but  see  Munn  v.  Burgess,  70  ter,  67  Ga.  588;  Massey  v.  Hub- 
Ill.  604.  bard,  18  Fla.  688;  Killey  v.  Wilson, 

70  Littleton  v.  Giddings,  47  Tex.  33  Cal.  690;   Tankard  v.  Tankard, 

109;    Russell  v.   Sweezy,  22   Mich,  79  N.  C.  54;   Glidewell  v.  Spaugh, 

235;   Warren  v.  Richmond,  53  111.  26  Ind.  319;  Westbrook  v.  Gleason, 

52.  79  N.  Y.  23;   Groff  v.  Ramsey,  19 

"1  Greer  v.  Higgins,  20  Kan.  420;  Minn.  44. 
Mechan  V.  Williams.  48  Pa.  St.  241;         --'Pell  v.  McElroy,   36  Cal.  272; 

Cabeen  v.  Buckenridge,  48  111.  91;  Williamson    v.    Brown,    15    N.    Y. 

Hommel     v.    Devinney,    39    Mich.  355;    Moyer  v.   Hinman,   13   N.  Y. 

522;  Hawley  V.  Morse,  32  Mo.  287;  189;    Buck    v.    Holloway,    2    J.    J, 

Pinney  V.  Fellows,  15  Vt.  525;  Per-  Marsh.    (Ky.)    180;    McKee  v.  Wil- 

kins  V.  Swank,  43  Miss.  349;   Gal-  cox,    11   Mich.   358;    Lipp   v.   Land 

ley  V.  Ward,  60  N.  H.  331;  Phillips  Syndicate,  24  Neb.  692.     Yet  while 

V.    Castly,    40   Ala.    486;    Sears   v.  the  open  and  actual  possession  of 


330  INVESTIGATING   THE   TITLE. 

rights,  which  affect  the  conscience  of  the  subsequent  pur- 
chaser. Actual  notice  of  itself  impeaches  the  subsequent  con- 
veyance, wliile  ]»i'()of  of  circumstances,  short  of  actual  notice, 
which  should  j)ul  a  prudent  man  upon  inquiry  will  authorize 
an  inference  of  notice  sulTicient  to  rebut  any  presumption  of 
good  faith."^ 

With  respect  to  the  character  of  possession  which  is  suffi- 
cient to  put  a  person  upon  inquiry,  and  which  will  be  equiva- 
lent to  actual  notice  of  rights  or  equities  in  persons  other  than 
those  having  a  title  of  record,  it  is  well  established  by  an 
unbroken  current  of  authority  that  such  possession  and  occu- 
pation must  be  actual,  open  and  visible;  it  must  not  be 
equivocal,  occasional  or  for  a  special  or  temporary  purpose; 
neither  must  it  be  consistent  with  the  title  of  the  apparent 
owner  of  record.'''^  All  the  cases  agree  that  notice  will  not  be 
imputed  to  a  purchaser  except  where  it  is  a  reasonable  and 
just  inference  from  visible  facts;  and  these  can  only  exist 
w'here  there  is  an  exclusive  possession,  actual  and  distinct, 
and  manifested  by  such  acts  of  ownership  as  would  naturally 
be  observed  and  known  by  others.^^ 

In  confor-mity  to  the  foregoing  principles  the  doctrine  of 
constructive  notice  will  not  apply  to  unimproved  lands  ;'^<' 
nor  to  cases  w  here  the  possession  is  ambiguous  or  liable  to  be 


land  affords   public  notice   of  the  to   impart   notice   of   title   thereto 

occupant's  claim,   one   who  on  in-  when  the  grantor,  residing  on  the 

quiring   of   the   occupant   receives  farm    when    the    conveyance    was 

no    information    from   him   is   not  made,   continues  so   to  do  and   to 

ordinarily   chargeable  with  notice  exercise    some    authority    over    it. 

of  his  equities.     Cavin  v.  Middle-  Elliot  v.  Lane,  82  Iowa,  484. 

ton,  63  Iowa,  618.  '-'  Brown  v.  Volkening,  64  N.  Y. 

73  Chapman  v.  Chapman,  91  Va.  76;  Patten  v.  Moore,  32  N.  H.  382. 
397.  The  possession  of  land,  to  afford 

74  Brown  v.  Volkening,  64  N.  Y.  notice  of  the  party's  rights,  must 
76;  Norcross  v.  Widgerly,  2  Mass.  be  as  open,  notorious  and  exclu- 
508;  Colby  v.  Kenniston,  4  N.  H.  sive  as  is  required  to  constitute 
262;  Sanford  v.  Weeks,  38  Kan.  adverse  possession  under  the  limi- 
319;  Lindley  v.  Martindale,  78  tation  laws;  but  it  is  not  necessary 
Iowa,  380;  Townsend  v.  Little,  109  that  it  should  have  all  the  char- 
U.  S.  504.  Thus,  the  possession  acteristics  of  an  adverse  posses- 
of  a  farm  by  a  woman  claiming  sion.  Smith  v.  Heirs  of  Jackson, 
title    under    an    unrecorded    deed  79  111.  254. 

from  her  son-in-law  is  insufficient  7c  white  v.  Fuller,  38  Vt.  201, 


INVESTIGATING    THE    TITLE.  331 

tiiisiiiwlci-stood;"^  nor  to  Jiii  yiiiiiilKiliilcd  or  unliiiislMMl  dwcll- 
iii<;-lioiJS(*;''^  iiiid  it  has  bfcii  hvUl  that  the  use  of  lauds  lor 
pasturaj,'i'  or  for  cutting  of  timber  is  not  such  an  occupancy  as 
will  charge  a  ixirchascr  or  iiiciiiiibrauccr  with  notice^'-*  The 
geueral  rule  is  (hat,  when  laud  is  vacant  or  unoccupied,  no 
presumption  can  arise  aj^^ainst  the  legal  title.**** 

There  are  a  few  cases  which  seem  to  hold  strongly  against 
the  doctrine  of  constructive  notice  arising  from  possession 
inerely,8i  though  admitting  such  to  be  comjietent  for  the  con- 
sideration of  a  jury  in  connection  with  direct  evidence  of 
actual  notice;  but  the  great  preponderance  of  authority  sus- 
tains the  principle  that  a  purchaser  from  the  record  owner  is 
bound  to  notice  the  possession  of  another,  and  takes  subject 
to  tlie  right  indicated  by  such  possession. 

In  every  instance,  therefore,  where  the  vendor  is  not  in  pos- 
session, the  safe  course  is  to  make  the  inquiry,  for  the  law 
will  not  extend  its  protection  to  those  who  through  negligence 
or  inattention  suffer  an  advantage  to  be  taken  of  them ;  and 
while  a  purchaser  of  land  w^ho  examines  the  records  is  pro- 
tected by  them  so  far  as  they  can  protect  him,  yet  he  neces- 
sarily takes  the  risk  of  having  the  actual  state  of  the  title 
correspond  with  that  which  appears  of  record.^-  The  impor- 
tance of  the  inquiry  cannot  be  overestimated  in  those  cases 
where  a  long  interval  exists  between  the  time  of  acquiring 
title  and  its  offer  to  the  purchaser.    In  some  cases  seven  years, 

"  Patton  V.  Moore,  32  N.  H.  382;  78  Brown  v.  Volkening,  64  N.  Y. 

Loughbridge  v.  Borland,  52   Miss.  76. 

546;   Elliot  v.  Lane,  82  Iowa,  484.  79  McMechan  v.  GrifBng,  3  Pick. 

Actual  residence  on  land  is  the  best  (Mass.)   149;   Holmes  v.  Stout,  10 

notice    to    adverse    claimants   that  N.  J.  Eq.  419;    and  see   Fassett  v. 

the  land    is   being  held   and   used  Smith,  23  N.  Y.  252;  Thompson  v. 

by  the  occupant  as  his  own.    Mar-  Burhans,  79  N.  Y.  93. 

tin  V.  Judd,  81  111.  488.     But  facts  ^  White    v.    Fuller,    38   Vt.    201. 

indicative    of    a   claim    of    owner-  The  person   having  the  legal  title 

ship  may  be  considered  with  other  is  'always  in  law  in  the  construc- 

circumstances   where   there   is   no  tive  possession  of  the  land,  unless 

actual    residence:     thus,    the    fact  he  has  become  disseized.     Thomp- 

that  the  party  claiming  title  had  son  v.  Burhans,  79  N.  Y.  93. 

laid  a   sidewalk   is  one  proper   to  **i  Pomeroy   v.    Stevens,   11    Met. 

be  considered   in   connection   with  (Mass.)  244;  Glass  v.  Hurlbut.  102 

other  marks  of  ownership.    Hatch  Mass.   34;    Clark   v.   Bosworth,   51 

V.  Bigelow,  39  111.  546.  Me.  528. 

82  Peck  v.  Clapp,  98  Pa.  St.  581. 


832  INVESTIGATING    THE    TITLfi. 

and  in  all  cases  twenty  years,  will  be  sufficient  to  bar  an 
apparent  title  of  record  when  adverse  rights  have  been 
ac«iiiired  by  proper  h^<;al  inethods;  and  continuous  possession 
is  almost  as  essential  a  showing  as  unbroken  continuity  of 
record  title. 

i^  272.  Continued — Character  of  possessor.  Possession  by  a 
tenant  is  notice  of  the  title  of  the  landlord^^  as  well  as  of  the 
actual  interest  of  the  tenant  and  the  whole  extent  thereof  ;^^ 
so,  too,  actual  possession  by  a  beneficiary  is  notice  of  the 
trust,^^  and  under  the  first  mentioned  doctrine  that  possession 
by  a  tenant  is  notice  of  the  rights  of  the  landlord,  a  grantee  of 
lands  then  in  the  actual  and  visible  possession  of  a  tenant  of  a 
beneficiary,  will  take  with  constructive  notice  of  the  right 
and  title  of  such  beneficiary,  and  of  the  contingent  right  of 
dower  of  his  wife.^^ 

§  273.  Continued — Possession  of  prior  vendors.  It  has  been 
held  that  the  rule  which  provides  that  possession  of  land  is 
notice  to  a  purchaser  of  the  possessor's  title  does  not  apply 
to  a  vendor  remaining  in  jjossession  so  as  to  require  a  pur- 
chaser from  his  grantee  to  inquire  whether  he  has  reserved 
any  interest  in  the  land  conveyed,  and  that,  so  far  as  the  pur- 
chaser is  concerned,  the  vendor's  deed  is  conclusive  on  that 
subject.^'  So,  too,  it  has  further  been  held  that  the  continued 
use  and  occupation  by  a  grantor  of  lands  which  he  had  pre- 
viously conveyed  is  not  evidence  that  his  possession  is  adverse 
to  his  grantee;  on  the  contrary,  his  possession  is  deemed  to 
be  under  and  in  subordination  to  the  legal  title  held  by  his 
grantee,  and  that  he  is  estopped  by  his  deed  from  claiming 
that  his  holding  is  adverse,  and  that  this  rule  applies  to  all 
subsequent  grantees  of  such  grantor.^^ 

Undoubtedly  the  general  rule  is  that  the  possession  of  a 
grantor  is  not  adverse  to  his  grantee,  and  that  the  grantor  and 

83  Dickey  v.  Lyon,  19  Iowa,  545.  cry,  29  Mich.  68;  Bloomer  v.  Hell- 
s'Chesterman     v.     Gardner,     5  derson,    8   Mich.   395;    Newhall  v. 

Johns.  (N.  Y.)  29.  Pierce,  5  Piclt.    (Mass.)   450;   Haf- 

85Pritchard  v.  Brown,  4  N.   H.  ter  v.  Strange,  65  Miss.  323;  Cook 

397.  v.    Travis,    20   N.   Y.   400;    May  v. 

86  Bowman  v.  Anderson,  82  Iowa,  Sturdivant,  75  Iowa,  116. 

219.  ssSchwallback   v.   R.   R.   Co.   69 

«7  Van  Kuren  v.  R.  R.  Co.  38  N.  Wis.  292. 

J.  L.  165;  and  see  Abbott  v.  Greg- 


INVESTIGATING    THE    TITLE.  333 

all  claiminj,'  mulcr  him  hv  a  title  a((iiiiiv(l  Kiil)s<'(iuent  to  the 
jjraiit  aie  estoi^ped  I'l-um  <leii_viii^  the  ^laiitee'.s  title.  Yet 
this  is  a  most  unsafe  rule  for  iiitendin;:;  purchasers  to  rely 
upon,  foi-  uumy  circuiustauces  may  intervene  to  prevent  its 
application.  \u  a  uuiiiher  of  iuslauces  i^rantors  who  had  con- 
veyed by  (juil claim  deed  only  by  icmaiuiii;:;  iii  ])ossession  of 
tlu'  proi«'rty  aiul  asserting-  a  hostile  claim  have  been  jiermitted 
to  accjuire  a  title  aj^aiust  (heir  };iantees  by  virtue  of  tlu'  stat- 
ute of  limitations;'*''  while  some  courts  have  ludd  that  a 
j^rantor  with  warranty  may,  subse(iuent  to  the  delivery  of  his 
y,rant,  ori;;inate  an  adverse  possession,  and  it  is  not  estopped 
from  asserting  the  same  by  the  covenant  of  warranty."^*  So, 
too,  (Miuitable  circumstances  may  ])revent  the  oj)eration  of  the 
rule,  as  where  a  deed  had  been  delivered  in  escrow  until  the 
price  should  have  been  paid  by  the  grantee  was  put  on  record 
in  violation  of  the  agreement,  it  was  held  that  the  possession 
of  the  grantor  was  constructive  notice  to  a  subsequent  pur- 
chaser from  his  grantee  of  all  his  rights  and  equities  in  the 
land."^  In  any  event  it  would  seem  that  possession  of  a  prior 
vendor  cannot  with  safety  be  ignored,  even  though  he  may 
have  conveyed  with  warranty;  and  where  he  continues  to 
occupy  the  premises  the  better-sustained  rule  would  seem  to 
be  that  all  persons  acquiring  title  from  his  grantee  are 
charged  with  notice  of  the  claim  of  the  grantor  and  of  his 
equitable  rights.'-'- 

This  is  in  consonance  with  the  established  doctrine  which 
allows  possession  to  have  the  effect  of  notice,  and  the  cases 
which  declare  the  rule  last  stated  proceed  on  the  ground  that 
there  is  no  good  reason  for  making  a  distinction  between  pos- 
session by  a  stranger  to  the  record  title  and  possession  by  a 
grantor  after  the  delivery  of  his  deed.  In  either  case,  it  is 
contended,  the  i)ossession  is  a  fact  inconsistent  with  the  title 
«s  shown  of  record,  and  if  possession  by  a  stranger  is  sullicient 
to  make  it  obligatory  upon  a  purchaser  to  ascei'tain  his  right, 
possession  by  a  grantor  is  a  circumstance  entitled  to  equal 

8»  Borland   v.   Magilton,   47   Cal.  v.   McEIroy.  36  Cal.   268;    Webster 

485.  v.    Maddox,  6  Me.   256;    Wright  v. 

00  Sherman  v.  Kane,  86  N.  Y.  57.  Bates,   13   Vt.   341 ;    McKecknie  v. 

91  Bank  v.  Godfrey,  23  111.  579.  Hoskins,   23   Me.   230;    Hopkins  v. 

"-•White   V.    White,    89    111.    460;  Garrard,    7    B.    Mon.     (Ky.)    312; 

Ford  V.  Marcall.  107  111.  13(1:   Poll  Eylar  v.  Eylar.  CO  Tex.  315. 


334  INVESTIGATING    THE    TITLE. 

considciatioii.''''  It  is  said,  that  as  an  absolute  deed  not  only 
divests  title  but  also  transfers  the  ri<;lit  of  ijossession,  so  a 
grantor  found  in  possession  after  conveyance  discloses  a  fact 
inconsistent  with  the  legal  effect  of  his  deed  and  which  is  sug- 
gestive of  some  right  or  interest  in  the  premises;  that  under 
such  circumstances  a  purchaser  has  no  right  to  rely  upon 
the  legal  effect  of  the  deed  in  disregard  of  this  antagonistic 
fact. 

§  274.  Liens  and  incumbrances.  If  a  party  purchases  and 
obtains  a  conveyance  of  land,  having  no  notice,  actual  or 
constructive,  of  prior  liens  and  incumbrances,  he  takes  the 
land  free  from  the  same;"^  on  the  other  hand,  a  party  having 
notice  of  such  facts  as  would  put  a  prudent  person  on  inquiry 
is  chargeable  with  notice  of  other  facts  to  which  by  diligent 
inquiry  and  investigation  he  would  have  been  led.^^  If  he 
takes  a  conveyance  with  notice  of  a  prior  lien  he  of  course 
holds  subject  to  the  same,  and  the  land  in  his  hands  is  charged 
with  its  payment  the  same  as  if  no  conveyance  had  been 
made.^*^ 

§  275.  Mortgages.  The  attention  of  every  person  making 
an  examination  of  title  is  usually  directed  toward  the  ascer- 
tainment of  the  fact  of  the  existence  of  incumbrances  upon 
the  property  by  way  of  mortgage.  The  means  of  information 
in  all  ordinary  cases  is  the  public  records,  for  the  registry  of 
a  mortgage  is  notice  to  all  subsequent  purchasers  and  incum- 
brancers of  the  lien  created  thereby .^^  There  are  cases  which 
hold  that  a  mortgagee  having  deposited  his  mortgage  for  rec- 
ord has  thereby  discharged  his  full  duty  in  respect  to  giving 
notice  of  his  lien  and  his  rights  thereunder,  and  is  not  affected 
by  any  mistakes  of  the  clerk  in  transcribing;  but  the  better 
and,  indeed,  prevailing  doctrine  is  that  a  subsequent  pur- 
chaser is  not  bound  to  observe  errors  of  this  character,  and 
that  as  to  him  the  registry  is  notice  of  the  tenor  and  effect  of 
the  instrument  only  as  it  appears  upon  the  record.^^    Hence, 

93Groff  V.  State  Bank,  50  Minn.  oc  Dunlap  v.  Wilson,  32  111.  517; 

234;   Turman  v.  Bell,  54  Ark.  273.  Martin  v.  Cauble,  72  Ind.  67. 

»*  Dunlap  V.  Wilson,  32  111.  517.  "^  Dunlap  v.  Wilson,  32  111.  517; 

9"' Bent  V.  Coleman,  89  111.   364;  Martin  v.  Cauble,  72  Ind.  67. 

George  v.  Kent,  7  Allen    (Mass.),  "f^  Stevens   v.    Hampton,    46   Me. 

16.  404;  Barnard  v.  Campau,  29  Mich. 


INVESTIGATING    THE    TITLE.  335 

111'  is  afTcctcd  only  a.s  to  llic  amouiil  of  tlic  lieu  dobt  as  lucii- 
tiontMl  in  (lie  rt'coiil;""  and  the  land  in  liis  hands,  where  the 
purchase  is  made  in  ;;<»o<l  failh  and  withonl  notice  from  otiier 
sources,  will  be  chaiy;ed  only  with  the  amount  expressed  on 
such  record.' 

It  is  a  fui'llier  rule  that  where  tln'onj^h  inadvertence  or  mis- 
take u  wronj;  descrii»tiou  has  been  inserted  in  a  mort^aj;e  the 
record  will  not  furnish  constructive  notice  of  such  mistake 
and  a  jiurchasei*  for  value,  having  no  actual  knowledge  o1  such 
mistake,  will  take  the  land  in  the  condition  disclosed  by  the 
record.  It  often  happens  that  through  errors  of  the  draughts- 
man a  wrong  section,  town,  or  range,  is  given,  the  effect  of 
which  may  be  to  locate  the  land  many  miles  away  from  the 
place  actually  intended.  As  between  the  parties  this  error 
would  be  corrected,  but  a  puichaser  in  good  faith  of  the  land 
intended  to  be  mortgaged  would  be  chargeable  only  with 
whatever  the  record  disclosed.  In  such  event,  if  the  purchase 
money  had  been  ])aid,  he  would  hold  the  land  freed  from  the 
mortgage  lien,  and,  if  onl^-  a  portion  of  the  price  had  been 
paid  would  still  be  entitled  to  protection  as  to  the  amount  so 
l)aid  before  notice  had  been  received  of  the  outstanding 
equity.2 

So,  too,  where  the  record  shows  that  a  prior  mortgage  has 
been  satisfied,  or  the  lien  thereof  released,  even  though  no 
statement  aj)pears  as  to  who  made  such  payment,  a  pur- 
chaser having  no  other  notice  than  that  afforded  by  the  record 
nuiy  assume  that  the  payment  was  made  by  the  party  prinmr- 
ily  liable  and  need  not  extend  his  inquiry  beyond  the  record.^ 

§  276.  Judgment  liens.  After  the  registry  of  deeds  the  next 
field  for  investigation  is  the  court  records  of  uusatistied  and 
subsisting  judgments.  This  search  is  of  i)rimaj*y  importance, 
and  is  a  precaution  that  can  never  safely  be  dispensed  with  in 
an  examination  of  title. 


164;    Miller  v.  Bradford,  12  Iowa,  i  Luch's  Appeal,  44  Pa.  St.  519; 

14;    Kilpatrick    v.    Kilpatrick,    23  Miller  v.   Bradford,    12   Iowa,    14; 

Miss.  124.  Gilchrist  v.  Gough.  63  Ind.  589. 

0"  Terrell  v.  Andrew  Co.  44  Mo.  2  Davis  v.   Ward,   109   Cal.   186; 

309;    Peck   v.   Mallams,    10    N.    Y.  Sanger  v.  Craigue,  10  Vt.  555. 

519;    Dean  v.  Anderson,   34   N.  J.  'Ahem    v.    Freeman,    46    Minn, 

Eq.   508.  156. 


336  INVESTIGATING    THE    TITLE. 

The  matter  of  judgment  liens  is  purely  statutory;  for  judg- 
ments were  not  liens  upon  lands  at  common  law,*  and  their 
efficacy,  extent  and  duration  are  measured  entirely  by  the 
statute  which  creates  them.  For  this  reason  nothing  more 
than  a  statement  of  general  principles  can  be  made  in  this 
connection. 

An  examination  for  judgments  is  generally  made  by  con- 
sulting the  judgment  docket  which  should,  of  itself,  furnish 
reasonably  satisfactory  evidence  as  to  whether  an  incum- 
brance by  judgment  exists  against  the  party  from  whom  the 
proposed  purchase  is  to  be  made  or  against  any  of  his  grant- 
ors. Hence,  the  docket  of  a  judgment,  in  order  to  operate  as 
constructive  notice,  should  contain  all  the  essential  matters 
required  by  law  and  the  statute  in  relation  thereto  must  be 
strictly  complied  with.  Any  material  defect  or  omission  in 
this  particular  will,  as  a  rule,  avoid  the  effect  of  the  judg- 
ment as  against  an  innocent  purchaser.^ 

The  law,  with  respect  to  judgments  and  the  efifect  to  be 
given  to  them  in  connection  with  the  rights  or  claims  of  per- 
sons not  parties  thereto,  is  not  the  same  in  all  of  the  states. 
In  many  states  the  doctrine  that  the  general  lien  of  a  judg- 
ment upon  land  is  subject  to  any  and  all  adverse  equities  or 
claims,  whether  secret  and  unknown,  or  recorded  and  known, 
prevails;  and  a  previously-acquired  equitable  interest  in  lands 
has  priority  over  the  lien  of  a  judgment  against  the  holder  of 
the  legal  title.*^    Where  this  doctrine  obtains  a  purchaser  of 

■4  At    common    law    a    judgment  to  deliver  to  him  a  moiety  of  his 

created  no  lien  on  real  estate,  nor  freehold    estate    until    he    should 

could  it  be  sold  on  execution.    But  have    execution    of    his   judgment, 

as  trade  developed,   it  was  neces-  This  it  was  held  created  a  lien  on 

sary  to   subject   land  to  the   pay-  the  lands  of  the  debtor  from  the 

ment  of  debts;  and  accordingly,  in  test  of  the  writ. 

the  reign  of  Edward  I.  (13  Edw.  I.  5  Davis  v.   Steeps,   87   Wis.  472; 

ch.   18),  a  statute,   usually   called  Hutchinson's    Appeal,    92    Pa.    St. 

the   statute    cle   mercatoriius,   was  186;  Grouse  v.  Murphy,  140  Pa.  St. 

enacted  which  authorized  the  judg-  335 ;  as,  where  the  statute  requires 

ment  creditor  to  sue  out  the  writ  the  "name  at  length"  of  each  judg- 

of  elegit,  by  which  the  sheriff  was  ment  debtor  and  the  docket  omits 

required   to  have  all  of  the  debt-  middle    names    or   initials;    Ridg- 

or's  goods  liable  to  execution  ap-  way's  Appeal,  15  Pa.  St.  177;  Terry 

praised  and  delivered  to  the  cred-  v.  Sisson,  125  Mass.  560. 

itor    in    satisfaction    of    his    debt,  c  Jones  v.  Rhoads,  74  Ind.  510. 
and  if  insufficient  for  the  purpose 


INVESTIGATING    THE    TITLE.  337 

such  interest  would  undonljtcdly  be  entitled  to  protection  if 
no  bad  faith  intcifercd  to  vitiate  the  transaction;  but  one 
wiio  takes  title  to  land  apparently  iniperfeet  of  record,  and 
which  seems  of  record  to  be,  as  in  fact  and  law  it  is,  subject 
to  the  lien  of  a  judgment,  canncjt  afterwards,  upon  learning 
that  unrecorded  deeds  have  been  made,  be  allowed  to  claim 
title  through  them  in  order  to  defeat  the  lien  of  the  judj^ment, 
when  at  the  time  of  his  puichasc  lie  had  no  knowledj^e  <jf  th<* 
existence  of  the  deeds,  and  supjiosed  he  was  jj;ettin«;  the  title 
as  it  appeared  of  recordJ  A  purchaser  of  land  with  knowl- 
ed^^c  that  it  is  subject  to  a  judgment  lien  is  not  a  bona  fide 
purchaser." 

Where  the  lien  of  a  judgment  accrues  after  the  execution  of 
the  contract  of  sale  and  before  conveyance,  if  the  vendee  has 
been  let  into  possession  he  will  not  be  chargeable  with  notice 
of  such  judgment,  and  in  an}'  event  the  lien  will  attach  no 
further  than  the  unpaid  purchase  money  remaining  in  his 
hands.  Should  the  purchaser,  without  actual  notice,  make  the 
remaining  payments  to  the  vendor,  pursuant  to  the  contract, 
such  payments  will  operate  to  discharge  the  contract  and  no 
lieu  will  attach  to  the  land.^ 

The  lien  of  a  judgment  ceases  after  a  time,  and  to  become 
again  effective  the  judgment  must  be  revived,  but  the  general 
rule  is  that  until  this  has  been  accomplished  it  exerts  no 
effect  upon  the  judgment  debtor's  lands.  Hence,  a  i)urchaser 
during  the  interim  would  take  the  land  discharged  from  the 
lien  nor  will  the  lien  of  a  revived  judgment  relate  back  so  as 
to  defeat  the  title  of  a  purchaser  who  acquires  same  between 
the  date  of  the  expiration  of  the  lien  and  its  revival.^ ^ 

Where  the  record  of  a  judgment  bears  upon  its  face  the 
evidence  that  it  has  been  satisfied,  and  an  innocent  jiurchaser, 

1  McAlpine    v.    Hedges,    21    Fed.  from     the     lien     of     a    judgment 

Rep.  689.  against    his    vendor,    although    he 

«  Cox  V.  Prater,  67  Ga.  588;   but  had  actual  notice  of  the  judgment 

see  Danielly  v.  Colbert,  71  Ga.  218.  at  the  time  of  the  purchase.    San- 

The  statute  has  an  important  bear-  ders  v.  McAffee,  42  Ga.  250. 
ing  upon  these  matters:    thus,  in        o  Wehn    v.    Fall,    55    Neb.    547; 

Georgia,  a  bona  fide  purchaser  of  Moyer  v.  Hinman,  13  N.  Y.  180. 
real   property  for  a  valuable  con-        i<>  Woodward  v.  Woodward,  39  S. 

sideration,   who   retains   open    and  C.   259;    King  v.  Harris,  34  N.  Y. 

undisturbed    possession    for    four  330;   Bank  v.  Wells,  12  Mo.  361. 
years,   holds   the   land   discharged 
?3 


338  INVESTIGATING    THE    TITLE. 

relying  upon  the  record,  purchases  the  hind  which  might  have 
been  ali'ected  thereby,  such  purcliaser  will  be  i)rotected  even 
though  it  afterwards  may  appear  that  such  satisfaction  was 
improperly  entered.^^  Indeed,  as  has  been  well  said,  any 
other  view  would  shake  confidence  in  the  public  records  and 
jeopardize  titles  acquired  upon  the  faith  of  what  such  records 
show.^- 

§  277.  Decrees.  A  decree  being  a  matter  of  public  record, 
a  third  person,  having  x)urchased  of  one  of  the  parties  to  the 
record,  is  presumed  to  have  done  so  with  full  knowledge  of 
the  decree.i"^ 

§  278.  Mechanics'  liens.  Aside  from  the  actual  or  con- 
structive notice  furnished  by  a  Us  pendens,  the  subject  of 
which  has  been  sufficiently  considered,  a  party  purchasing 
lands  on  which  buildings  are  in  process  of  erection,  having 
knowledge  of  the  same,  is  bound  to  observe  this  fact,  and  to 
make  inquiry  as  to  the  rights  of  parties  furnishing  materials 
or  performing  work  thereon;  and  such  person  is  charged  with 
constructive  if  not  actual  notice  of  their  lien.^^  The  general 
doctrine  of  mechanics'  liens  provides  that  the  lien  shall  take 
effect  from  the  time  of  the  commencement  of  the  work,  and 
that  no  sale  or  transfer  of  the  land  thereafter  made  is  suffi- 
cient to  divest  it.^^  As  statutes  relating  to  mechanics'  liens 
are  constantly  being  subjected  to  legislative  tinkering  no  posi- 
tive rules  of  general  observance  can  be  formulated,  but  the 
foregoing  have  received  a  general  recognition. 

§  279.  Vendors'  liens.  In  the  absence  of  an  agreement  to 
the  contrary,  the  vendor  retains  a  lien  on  the  bargained  lands 
for  the  unpaid  purchase  money,  notwithstanding  he  has  made 
an  absolute  conveyance  in  fee  to  the  vendee  and  put  him  in 
possession.!^    X  purchaser  from  the  vendee,  with  notice  of  the 

11  Charleston  v.  Ryan,  22  S.  C.  Y.),  367.  A  mechanic  may  file  his 
339.  lien  against  the  person  who  held 

12  Wheeler  v.  Alderman,  34  S.  C.  the  legal  title  when  the  work  was 
533.  commenced,  and  he   is  not  bound 

13  Loomis  V.  Riley,  24  111.  307.  to  inquire  further  or  take  notice 

14  Austin  V.  Wohler,  5  111.  App.  of  any  subsequent  conveyances  of 
300.  the  property.    Fourth  Ave.  Church 

isDunklee   v.    Crane,    103   Mass.    v.  Schreiner,  88  Pa.  St.  124. 
470;  Thielman  v.  Carr,  75  111.  385;         lo  The    lien   is   not   of  universal 
Mehan    v.    Williams,    2    Daly    (N.    observance.     See  "Vendor's  Lien," 


INVESTIGATING    THE    TITLE.  339 

vendor's  t'<iiiitable  lien  for  purchuHe  money,  will  be  charged 
with  the  same  trust  as  the  vendee  ;i^  for,  although  the  vendee 
lidhLs  the  vendor's  deed,  reciting  full  paynient  of  the  purchase 
money,  yet  one  dealing  with  the  vendee  with  reference  to 
such  land,  witli  knowledge  that  the  purchase  money  is  not 
fully  paid,  is  i)ut  on  inipiiry  as  to  the  amount  due  the  vendor, 
wliicli  would  lead  to  the  ascertainment  of  the  extent  of  the 
lien,  if  not  waived;  or,  if  waived,  of  the.  security  which  the 
vendor  had  taken  in  lieu  of  it.  If  such  purchaser,  being  thus 
put  on  inquiry,  fails  to  make  proper  investigation,  relying  on 
the  vendee's  statement  or  otherwise,  he  cannot  claim  jjrotec- 
tion  against  the  enforcement  of  the  vendor's  equitable  lien,^^ 
or  against  a  mortgage  on  the  lands,  executed  by  the  vendee  to 
the  vendor  to  secure  the  payment  of  the  purchase  money,  on 
the  ground  of  want  of  actual  notice  of  its  existence.^''  So, 
also,  if  the  deed  recites  that  the  sale  is  made  on  credit,  a  sub- 
sequent purchaser  is  bound  to  inquire  whether  the  purchase 
nu)iiey  has  been  i)aid;  and,  notwithstanding  that  the  time  for 
payment  as  stated  in  the  deed  has  passed,  there  is  no  presump- 
tion that  it  has  been  paid.  Such  a  recital  is  sufficient  to 
induce  inquiry,  and  must  be  regarded  as  notice. 

Where  the  subject  of  the  purchase  is  only  an  equity,  a  still 
stronger  case  is  presented;  and  the  fact  that  a  vendor  of  lands 
holds  only  a  bond  for  title  is  sutlicient  to  charge  the  purchaser 
from  him  with  notice  of  the  previous  vendor's  lien  for  unpaid 
purchase  money.^o 

§  280.  Real  estate  charged  with  legacies.  Where  title  is 
deraigued  through  devise  a  purchaser  from  the  devisee  or  those 
claiming  under  him  is  impressed  with  the  duty  of  ascertaining 
the  extent  of  the  devisee's  title  and  the  manner  of  its  invest- 
ure.    Notwithstanding  that  the  land  may  have  been  specific- 

post,  for  a  full  discussion  of  the  an  incumbrance  upon  land  is  suffi- 

subject.  cient  to  charge  him  with  notice; 

17  Graves  v.  Coutant,  31  N.  J.  Eq.  and  when  such  information  comes 
763.  to  the  knowledge   of  a  purchaser 

18  Deason  v.  Taylor,  53  Miss.  697.    the  law  requires  him  to  pursue  it 
10  Foster  v.   Stallworth,   62   Ala.    until  it  leads  to  notice.    iEtna  Ins. 

547;    and   see  Neal   v.  Speigle.   33  Co.  v.  Ford.  89  111.  252. 

Ark.   64.     Any   notice   or   circum-  -o  Newsome   v.    Collins,    43   Ala. 

stance   that   tends   to   give   notice  656;   Haskell  v.  State,  31  Ark,  91. 
or  informs  a  party  that  there  is 


340  INVESTIGATING    THE    TITLE. 

ally  devised  it  may  be  hampered  with,  conditions  or  charged 
with  legacies  and  payment  of  debts. 

Legacies  are  primarily  payable  out  of  the  personal  estate  of 
the  decedent,  and  never  out  of  the  real  estate,  unless  there  is 
an  express  direction  to  that  effect  contained  in  the  will,  or 
unless  an  intention  thus  to  charge  may  fairly  be  implied  from 
the  language  used.-^  liut  a  testator  may  exonerate  his  per- 
sonal estate  entirely  and  subject  his  realty  alone  to  the  bur- 
den; and  when  it  clearly  appears  from  the  whole  will  that 
such  was  the  testator's  intention,  the  real  estate  will  be  the 
primary  fund.-- 

While  the  earlier  decisions  would  seem  to  indicate  that  a 
legacy  could  not  be  declared  a  charge  upon  realty  unless  so 
expressly  stated  in  the  will,  the  tendency  of  modern  authori- 
ties is  to  place  this  matter  on  the  same  plane  as  other  testa- 
mentary provisions;  and  the  intention  of  the  testator  forms 
the  governing  consideration,  regardless  of  technical  rules. 
This  intent  will  be  effectual  when  found  to  exist  in  any  form; 
and  while  a  mere  direction  for  the  payment  of  debts  and  lega- 
cies will  not  alone  create  a  charge,^^  jet  when  the  testator 
directs  his  debts  and  legacies  to  be  first  paid  and  then  devises 
real  estate;  or  where  he  devises  the  remainder  of  his  estate, 
real  and  personal,  after  the  payment  of  debts  and  legacies;  or 
devises  real  estate  after  such  payment, — it  has  been  held  that 
the  real  estate  is  charged.^^ 

§  281.  Real  estate  charged  with  debts.  It  is  the  policy  of 
the  law  to  protect  the  just  claims  of  creditors  of  a  decedent 
by  subjecting  the  lands  and  tenements  of  which  he  died 
seized  to  their  payment.  The  proper  presentation  and  proof 
of  such  claims,  in  effect,  raises  a  lien  upon  the  lands,  and 
other  real  property  of  the  deceased,  which  may  be  enforced 
upon  the  failure  of  the  personal  assets  in  the  hands  of  the 
executor  or  administrator.  An  inquiry  is  therefore  imposed 
upon  intending  purchasers  as  to  the  condition  of  the  title  of 

21  Reynolds  v.  Reynolds,  16  N.  Y.  ris  v.  Douglas,  64  111.  472;  Quinby 

259;  Lynes  v.  Townsend,  33  N.  Y.  v.  Frost,  61  Me.  77;  Davis'  Appeal, 

562;   Geiger  v.  North,  17  Ohio  St.  83  Pa.  St.  348. 

568.  23  Lupton  v.  Lupton,  2  Johns.  Ch. 

-'2  Nash  V.  Taylor,   83  Ind.  349;  (N.  Y.)   614;   Rogers  v.  Rogers,  1 

Boylan  v.  Meeker,  28  N.  J.  L.  300;  Paige   (N.  Y.),  190. 

Heslop  v.  Gatton,  71  111.  530 ;  Har-  24  Lupton  v.  Lupton,  2  Johns.  Ch, 


INVESTIGATING    THE    TITLE.  3il 

an  heir  or  devisee,  wlieii  oll'ered  by  them,  and  all  doubts  that 
may  arise  should  be  resolved  before  the  purchase  is  consuiii- 
iiiated,  I'nless  the  estate  has  been  properly  closed  and  the 
administrator  dischar<,a'd  after  an  accountiuj;,  the  title  cannot, 
in  a  just  sense,  be  considered  marketable,  as  some  doubts 
growing  out  of  the  possible  unsatisfied  claims  of  creditors 
must  exist.  The  duty  of  imjuiry  is  even  more  impc  rative 
where  title  is  asserted  by  the  heir  of  an  estate  in  which  no 
probate  i)roceedin<j;s  have  been  taken. 

The  lien  of  a  creditor  is  not  perpetual,  liowever,  and  may  be 
barred  by  long  delay  or  inexcusable  laches.  As  a  rule  no 
statutes  of  limitation  have  prescribed  the  time  within  which 
land  must  be  sold  to  pay  debts  of  the  estate,  and  a  wide  dis- 
cretion is,  for  this  reason,  reposed  in  the  courts.  It  has  fre- 
quently been  said  that  such  lien  must  be  asserted  within  a 
reasonable  time,  but  this  furnishes  no  guide,  for  what  is  a 
^treasonable  time"  has  never  been  defined  and  rests  wholly 
within  the  judgment,  or  even  caprice,  of  the  tribunal  to  which 
the  question  is  presented.  The  circumstances  of  particular 
cases  are  so  widely  variant  as  to  confuse  rather  than  direct, 
and  the  only  positive  statement  that  can  be  made  is  that  the 
creditor  should  move  prom})tly  and  without  unnecessary 
delay;  failing  in  this  he  will  be  held  to  have  waived  his  lien 
and  a  grantee  from  the  heir  will  take  title  discharged  there- 
from.-^ 

The  earlier  cases  seem  to  have  drawn  the  line  with  respect 
to  laches  much  more  strictly  than  later  decisions,  yet,  as  the 
circumstances  of  each  case  govern  largely  in  the  result 
arrived  at,  they  furnish  but  poor  precedents  in  the  promulga- 
tion of  any  general  rule.  Each  case  is  made  to  depend,  in  a 
great  measure,  on  its  own  particular  circumstances,  therefore, 
a  reasonable  time  in  one  might,  in  view  of  the  situation,  be 
very  unreasonable  in  another.  ITence  we  find  a  widi'  range  in 
the  decisions.  One  case  lays  down  the  rigid  rule  that  an  unex- 
plained delay  of  one  year  will  justify  the  refusal  of  a  court 
to  grant  an  application  to  sell  for  the  payment  of  debts.-*^ 

(N.  Y.)  614;  Reynolds  V.  Reynolds,  Hatch  v.  Kelly,  63  N.  H.  29;   Lid- 

16    N.   Y.   259;    Fenwick    v.    Chap-  del   v.   McVickar,   11  N.  J.   L.   44; 

man.  9  Pet.  (U.  S.)   470.  Gunby  v.  Brown,  86  Mo.  253;   Es- 

s."' McCoy  V.  Morrow,  18  111.  519;  tate  of  Crosby,  55  Cal.  574. 

Mays    V.    Rogers,    37     Ark.     155;  -« Mooers  v.  White,  6  Johns.  Ch. 


342  INVESTIGATING    THE    TITLE. 

Ill  another,  seven  years  was  considered  an  abandonment  of 
the  right  to  sell.^^  Ten  years,  in  another,  was  held  to  extin- 
guish the  lieu,-''  but  the  same  court,  u])()n  different  circum- 
stances, held  that  a  delay  of  twenty  years  was  not  unreason- 
able in  view  of  the  facts  shown.^^ 

Tliat  such  a  condition  of  the  law  must  be  productive  of 
much  hardship  requires  no  demonstration;  that  to  a  consid- 
erable extent  it  renders  titles  insecure  is  apparent.  For  these 
reasons  the  tendency  of  courts  during  recent  years  has  been 
to  base  the  rights  of  creditors  upon  terms  corresponding  to 
the  statutes  of  limitation  and  by  analogy  to  those  statutes  to 
fix  periods  within  which  such  rights  must  be  asserted.  The 
convenience  of  the  mercantile  world,  the  policy  of  protecting 
innocent  purchasers,  and  the  security  and  repose  of  titles 
honestly  acquired,  demand  some  limitation  of  this  charac- 
ter, and  the  doctrine  is  tinding  general  acquiescence.^'^ 

In  probated  estates  these  questions  do  not  ordinarily  arise 
after  final  settlement,  for,  as  a  rule,  the  administrator  is 
required  to  show  a  satisfaction  of  all  proved  claims  before 
securing  his  discharge,  and  usually  a  claim  not  presented 
during  the  period  limited  for  this  purpose  is  barred. 

§  282.  Easements  and  servitudes.  It  is  a  general  rule  that 
parties  are  presumed  to  contract  with  reference  to  the  condi- 
tion of  the  property  at  the  time  of  sale.  This  is  undoubtedly 
true;  yet  to  affect  a  purchaser  with  notice  of  an  easement  in 
favor  of  an  adjoining  owner  the  easement,  unless  a  matter 
of  record,  must  be  obvious  and  apparent  to  an^^  observer.  An 
apparent  sign  of  servitude  must  exist  on  the  land  purchased; 
or,  as  expressed  by  some  of  the  authorities,  the  marks  of  the 
burden  must  be  open  and  visible.^^ 

§  283.  Pending  litigation.  One  who  buys  an  estate  pending 
a  suit  involving  the  question  of  title  thereto  will  be  consid- 
ered a  purchaser  with  notice,  although  not  a  party  to  the 
suit,  and  he  will  be  bound  by  the  judgment  in  the  action  just 

(N.    Y.)    360;    the    opinion    is    by  Wheat.     (U.    S.)     59;     Sujpner    v. 

Chancellor  Kent.  Child,  2  Conn.  607;  McCoy  v.  Mor- 

27  Hatch  V.  Kelly,  63  N.  H.  29.  row,  18  111.  519;    Gregory  v.  Rho- 

28  Mays  V.  Rogers,  37  Ark.  155.  den,  24  S.  C.  90;   Bishop  v.  O'Con- 

29  Killough    V.    Hinton,    54    Ark.  ner,  69  111.  431. 

65.  •■'1  Ingals   v.    Plamondon,    75    111. 

30  See    Ricard     v.     Williams,     7    118. 


INVESTIGATING    TIIE   TITLE.  343 

as  the  party  from  whuiii  he  buu^^lil  would  have  bi*eu,''-  It  is 
imniatoi'ial  vvhotliei'  siicli  purcliasor  had  actual  notice  of  the 
suit,  for  the  ruh*  is  that  every  person  who  buys  property 
under  such  circumstances  is  conclusively  ])resumed  to  have 
notice  of  the  pendinjj;  litij^ation;^^  and,  notwitlistandin;;  that 
the  rule  in  its  application  may  sometiuies  ])roduce  apparent 
hardships,  it  is  always  strenuously  enforced.  It  is  stated,  as 
the  reason  of  the  rule,  that  if  it  were  not  so  applied  there 
would  practically  be  no  end  to  a  litij^ation,  and  that  the  justice 
of  the  court  would  be  continually  evaded,  thus  producing;  a 
j^reater  hardship  and  inconvenience  to  the  suitor ;^^  while  the 
justness  of  the  rule  is  further  ai)parent  when  it  is  considered 
that  to  brin<;  home  to  every  purchaser  the  charge  of  actual 
notice  of  the  suit  must,  from  the  very  nature  of  the  case,  be 
in  many  instances  in  a  great  degree  impracticable.^^ 

The  fact  that  the  purchaser  buys  in  ignorance  of  the  suit 
and  pays  an  adequate  price  for  the  property  in  no  way  serves 
to  relieve  him  from  the  consequences  of  his  acts;  the  con- 
veyance in  any  event  is  so  far  a  nullity  that  it  can  avail  him 
nothing  as  against  the  title  established  in  the  pending  suit; 
and,  although  there  has  been  no  actual  fraud,  the  purchase 
will  still  be  set  aside  on  the  ground  of  implied  fraud.^*^  The 
most  that  a  purchaser  under  such  circumstances  can  acquire 
would  be  the  interest  remaining  in  the  vendor  after  the 
demands  of  the  adverse  party,  as  ascertained  by  the  pending 
trial,  shall  have  been  fully  satistied.'*'^ 

It  is  to  be  observed,  however,  that  the  application  of  the 
rule  that  a  purchaser  of  property  in  litigation  is  bound  by  the 
judgment  or  decree  made  is  contined  to  property  directly  in 
litigation;    to  property  so  described  in  the  pleadings  as  to 

32  Allen  V.   Poole,  54  Miss.  323;  Parker  v/  Conner,   95   N.   Y.   118; 
Rollins   V.    Henry,    78    N.    C.    342;  Knowles  v.  Ratlin.  20  Iowa.  101. 
Norton    v.    Birge,    35    Conn.    259;        •>*  Murray   v.   Lylburn,    2   Johns. 
Edwards  v.  Banksmith.  35  Ga.  215;  Ch.   (N.  Y.)  444. 

Leitch  V.  Wells,  48  N.  Y.  G08;  Tut-  J's  Parks   v.   Jackson,    11    Wend, 

tie  V.  Turner,  28  Tex.  773.  (N.  Y.)  459. 

33  Rollins  V.  Henry,  78  N.  C.  so  Murray  v.  Ballon,  1  Johns.  Ch. 
342;  Smith  V.  Cottrell,  94  Ind.  381;  (N.  Y.)  566;  Leitch  v.  Wells,  48 
Meux  V.  Anthony,  11  Ark.  422.    In  N.  Y.  608. 

contemplation  of  law  every  man  is        3-  Allen  v.   Morris,   34   N.   J.   L. 
presumed  to  be  attentive  to  what    161. 
passes  in  the  courts  of  the  state. 


S44  INVESTIGATING    THE    TITLE. 

j^ive  a  purchaser  notice  that  the  pr()])er(y  which  he  buys  is 
that  iuvolved  in  the  suit/"^'^  and  that  tlie  doctrine  of  constrQC- 
tive  notice  arising?  from  Us  pendens  is  not  to  be  extended 
beyond  the  immediate  subject-matter  of  the  suit.^-*  Tlie  prop- 
erty involved  must,  it  is  said,  be  so  pointed  out  in  the  proceed- 
ings as  to  warn  the  public  that  they  intermeddle  at  their  peril. 

It  is  further  to  be  observed  that  the  rule  applies  only  to 
persons  dealing  with  the  defendant  in  the  action,  and  has 
nothing  to  do  with  independent  parties  asserting  their  own 
adverse  rights  in  the  j^'operty.  Hence,  a  purchaser  of  the 
very  land  described  in  the  pleadings  from  one  who  is  not  a 
party  to  the  suit,  or  a  privy  to  such  party ,^o  is  never  charge- 
able with  the  constructive  notice  of  lis  pendens.'^^ 

§  284.  Partnership  property.  In  a  fonner  chapter'*^  occa- 
sion was  had  to  discuss  the  general  i)rinciples  of  law  in  respect 
to  partnership  holdings,  so  far  as  they  affect  the  relation  of 
vendor  and  vendee;  and  what  is  there  stated  may  be  profit- 
ably read  in  connection  with  this  chapter.  It  is  unnecessary 
to  recapitulate  such  former  statements;  and,  in  this  connec- 
tion, it  will  be  sufficient  to  observe  that,  where  purchasers  of 
real  estate  have  actual  or  constructive  notice  at  the  time  of 

38  Badger    v.    Daniel,    77    N.    C.  and  parties  to  a  decree,  in  the  eye 

251;  Allen  v.  Poole,  54  Miss.  333;  of  the  law,  are  those  only  who  are 

Miller  v.  Sherry,  2  Wall.    (U.  S.)  named  as  such  in  the  record,  and 

237;   Brown  v.  Goodwin,  75  N.  Y.  are   properly  served  with  process 

409.  or  enter  their  appearance.  A  privy 

33  Shearon  v.  Henderson,  38  Tex.  in  blood  or  estate  is  one  who  de- 

264.     Compare  Green  v.  Slayter,  4  rives  his  title  to  the  property  in 

Johns.  Ch.  (N.  Y.)  38.    In  this  case  question  by  descent  or  purchase; 

the  bill  described  the  property  as  and  a  privy  to  a  judgment  or  de- 

"divers    lands    in    Cosby's    manor,  cree  is  one  whose  succession  to  the 

in  the  paftnt  of   Springfield,  and  rights  of  property  thereby  affected 

certain  tracts  or  parcels  of  land  in  occurred   after   the   institution   of 

Oriskany  patent;"   and   the   court  the    particular    suit    and    from    a 

held     that     the     purchaser     was  party  thereto. 

chargeable  with  notice  of  the  pen-  ^i  French     v.     Loyal,     5     Leigh 

dency  of  the  suit  and   of  all  the  (Va.),   627;    Parsons   v.   Hoyt,    44 

facts  stated   in  the  bill,   and  that  Iowa,  154;    Clarkson  v.  Morgan,  6 

the     description     of     the     lands,  B.  Mon.    (Ky.)  441;   Herrington  v. 

though   general,   was   sufficient   to  Herrington,   27   Mo.   560;    Scarlett 

put  him  on  inquiry.  v.   Gorham,  28   111.   319;    Miller  v. 

40  It   is   only   parties   and   their  Sherry,  2  Wall.    (U.  S.)    250. 

privies  in  blood  or  estate  that  are  '»2  See  chapter  II,  sec.  58,  ante. 
estopped  by  a  decree  or  judgment 


INVESTIGATING   THE    TITLE.  •'^io 

tiu'ii*  piirchiiHc  (hill  saiiie  is  jjailncrsliip  piopcrt  v,  it  will  !)•- 
fluirj'<'al)l«'  in  llu-ii'  liands  with  the  pavnicnt  of  the  partucisliip 
debts,  althouj^h  tlic.v  iiiav  have  had  no  notice  of  the  existence 
of  tliosc  debts.  If  they  hatl  no  notice  (hat  it  was  partnership 
property,  they  will  be  exonerated  to  the  extent  of  the  pnrchase 
money  paid  by  them,  and  so  far  as  the  purchase  money  has  not 
been  paid,  it  will  be  re^Mided  as  a  substituted  fund  charge- 
able in  their  hands  with  the  same  burdens  as  the  laud.^^ 

§  285.  Notice  to  agent.  The  authorities  seem  to  be  united 
upon  the  pioitosition  that  notice  to  the  agent  of  a  purchaser  is 
notice  to  the  purchaser;'*  and,  in  like  manner,  notice  to  a  ])art- 
ner  in  a  purchase  of  lands  of  prior  riglits  or  ecpiities  is  notice 
to  the  other  partner.'*^  So,  also,  notice  to  the  attorney  is  as 
effect  ual  as  to  the  client  i^*^  yet  it  does  not  seem  that  a  ])arty  is 
chargeable  with  notice  of  facts  within  the  knowledge  of  his 
attorney  which  became  known  to  him  while  acting  as  the 
attorney  of  another  person.^'^ 

§  286.  Joint  purchasers.  While  it  seems  to  be  the  rule  that 
a  notice  to  a  partner  in  a  purchase  of  lands  of  prior  rights  or 
equities  is  notice  to  the  other  partners,  yet  in  the  case  of  a 
purchase  made  by  several  jointly  or  as  tenants  in  common, 
if  there  is  in  existence  an  incumbrance  or  conveyance  affecting 
the  title  to  the  land,  those  who  have  notice  of  the  same  will 
hold  their  title  in  suboi-dination  to  it,  while  those  who  did  not 
have  such  notice  will  hold  their  title  free  from  the  claim  to 
which  their  co-tenants  are  subjected.  This,  it  is  held,  will 
always  be  the  case  where  there  is  no  proof  that  the  parties 
ailected  with  notice  were  not  acting  as  the  agents  or  attor- 
neys of  the  others,  or  by  virtue  of  a  partnership.^^  The  rule 
that  notice  to  a  co-tenant  is  not,  by  mere  force  of  the  relation, 
notice  to  any  of  his  companions,  unless  in  case  of  notice  to 
quit,  seems  to  be  fully  applicable  to  a  case  of  this  kind.^'-^ 

•»a  Hoxie  V.  Carr,   1   Sumn.    (C.  ^"  Herrington    v.    McCollum.    73 

Ct.)   173.  111.  476;  Campbell  v.  Benjamin,  69 

44  Bigley   v.   Jones.   114    Pa.    St.  111.  244. 

510;    Meier  v.  Blume,  80  Mo.  179;  4"*  Wait    v.    Smith,    92    111.    385; 

Smith  V.  Dunton,  42  Iowa.  48.  Snyder  v.  Sponable.  1  Hill  (N.  Y.), 

4-.  Rector  v.  Rector,  3  Gilm.  (111.)  5G7. 

105.  •;.  Wait  V.  Smith.  92  111.  385. 

40  Williams  v.  Tatnall,  29  111.  553. 


'MG  INVESTIGATING  THE    TITLE. 

v^  287.  Rebutting  presumption  of  notice.  Where  circunl- 
staut-es  are  br()ii<;ht  diiectiy  home  to  the  knowledge  of  a  pur- 
chaser, sufficient  in  hiw  to  put  him  on  inquiry  and  thus 
amount  to  notice,  he  will  be  entitled  to  rebut  the  presumption 
of  notice  which  would  otherwise  arise  by  showing  the  exist- 
ence of  other  attendant  circumstances  of  a  nature  to  allay  his 
suspicions,  and  lead  him  to  suppose  the  inquiry  was  not  nec- 
essary.^*^  So,  also,  where  the  circumstances  relied  on  as  suffi- 
cient to  charge  a  party  with  notice  by  requiring  him  to  make 
inquiry  may  be  equally  as  well  referred  to  a  different  matter 
or  claim  as  to  the  one  he  is  sought  to  be  chargeable  with 
notice  of,  they  will  not  be  sufficient/'^ 

50  See  Rogers  v.  Jones,  8  N.  H.        "  Chadwick  v.  Clapp,  69  111.  119. 
264;   Williamson  v.  Brown,  15  N. 
Y.  354. 


CHAPTER  X. 


THE  ABSTRACT. 


288. 

General  principles. 

§292. 

289. 

Duty     of     funiisliing     ab- 

stract. 

294. 

290. 

When  the  abstract  is  made 
a  condition. 

295. 

291. 

Right  to  time  for  examin- 

296 

ing  title. 

297, 

Good  and  suflBcient  ab- 
stract. 

Originals  and  copies. 

What  the  abstract  should 
show. 

Root  of  title. 

Perusing  the  abstract. 


>j  288.  General  principles.  It  has  now  become  an  almost 
universal  custom  in  all  cases  of  transfer  of  real  property  for 
the  vendor  to  furnish  to  the  vendee  satisfactory  evidences  of 
the  soundness  of  the  title  which  he  asserts  and  of  his  ri<!:ht  to 
claim  and  dispose  of  the  estate  which  forms  the  subject-mat- 
ter of  the  nej^otiation.  For  this  purpose  the  vendor  would 
most  naturally  i)roduce  his  muniments  of  title — the  deeds  or 
matters  in  writin<i  upon  which  he  founds  his  claim  of  owner- 
ship. But  as  the  arrangement  and  perusal  of  these  documents 
must  often  occasion  much  loss  of  time,  a  practice  grew  up  in 
England  during  the  latter  part  of  the  eighteenth  century  of 
making  an  orderly  S3'nopsis  of  all  the  material  and  operative 
parts  of  the  instruments  which  constituted  the  vendor's  chain 
of  title;  and  this  synoptical  chain,  called  an  abstract  of  the 
title,  was  given  to  the  vendee  prior  to  the  consummation  of 
the  contract,  in  order  1o  expedite  his  labors  in  the  examination 
of  the  vendor's  proprietory  rights. 

This  practice  of  the  English  conveyancers  was  adopted  by 
the  legal  ])rofession  in  Anu'rica,  and  soon  became  of  even 
more  importance  here  than  in  the  country  of  its  origin,  for 
the  reason  that  title  deeds  are  rarely  preserved  for  any  length 
of  time,  and  could  not  in  many  instances  be  jjiodiiced — the 
public  records  being  regarded  as  the  greatest  depositorii's  of 
title,  and  the  individual  i)aying  but  little  attention  to  his 
muniuu'uts  aftei-  they  had  once  been  transcribed.  To  search 
the  records,  even  while  il  might  be  an  imj)erative  legal  duty, 
was  nevertheless  a  task  of  such  herculean  i)roportions  as  to 
render  it   in  many  cases  absolutely  iniiiossil)le;    and  so  a  dis- 

347 


348  THE    ABSTRACT. 

tinct  braueli  of  k'{,'al  ijiactitiouers  has  been  gradually  devel- 
oped whose  sole  duty  is,  by  properly-prepared  indices  and 
references,  to  procure  and  furnish  from  the  public  records  the 
same  general  and  special  iuformatiou  that  the  English  con- 
veyancer culled  from  the  original  instruments  in  his  hands, 
the  work  of  the  American  practitioner  retaining  the  same 
name  that  had  been  given  to  its  English  prototype,  viz.,  an 
abstract  of  the  title. 

The  American  abstract  differs  in  many  particulars  from 
that  in  use  in  England,  being  far  broader  in  its  scope  and 
extending  its  inquiries  not  only  among  all  classes  of  docu- 
ments and  papers  that  may  disclose  claims  or  equities,  but 
also  to  the  judgments  and  decrees  of  courts  of  record,  and  to 
such  liens  as  may  be  created  by  any  of  the  municipal  agencies 
of  the  state.  When  properly  prepared  it  constitutes  an  almost 
indispensable  adjunct  to  every  contract  of  sale,  and  its  produc- 
tion is  usually  made  a  condition  precedent  in  all  agreements 
for  conveyance.^ 

§289.  Duty  of  furnishing  abstract.  In  England  a  pur- 
chaser may,  it  seems,  require  to  be  furnished  with  an  abstract 
of  the  seller's  title,  even  though  he  may  have  already  agreed 
to  accept  the  same,  and  may  retain  such  abstract  during  the 
negotiations  upon,  and  even  after  rejection  of,  the  proffered 
title,  until  the  dispute  is  finally  settled,  for  the  purpose  of 
showing  the  grounds  of  such  rejection.^  It  will  be  remem- 
bered, however,  that  an  English  abstract  is  frequently  only  a 
digest  of  the  title  deeds  and  muniments  relied  on  by  the 
vendor  to  establish  his  claim,  and  which  invariably  accom- 
pany the  abstract  for  examination  and  comparison.  The 
abstract  so  furnished,  therefore,  is  rather  in  the  nature  of  a 
well-arranged  index  to  accompany  documents,  and  is  prepared 
primarily  for  their  more  convenient  and  systematic  perusal. 
An  American  abstract,  on  the  contrary,  is  intended  to  furnish 
within  itself  a  full  exposition  of  title,  and  to  obviate  the  neces- 
sity of  referring  to  the  original  sources  of  information.     In 

1  The  author  modestly  calls  the  this    important    subject,    and    sug- 

attention   of  those  of  his   readers  gests  that  its  perusal  could  be  most 

who  may  desire  to  pursue  this  sub-  advantageously  made  in  connection 

ject   more    in    detail    to    his    own  with  the  present  work, 

work  on  "Abstracts  of  Title,"  be-  2  See  2   Sudg.  Vend.   *39;    Dart, 

ing   the   only   American  work  on  Vend.  (Am.  ed.)  130. 


THE    ABSTRACT.  349 

the  fomuT  casi'  the  deeds  and  in  liniments  are  in  the  hands  or 
under  llie  contiol  ol'  I  he  \('n«h»r,  and  the  reason  of  the  Enf^lish 
rnh'  is  obvious  lioni  this  fact  ah)ne.  lint  in  the  Tnited  States 
tlie  (hanjicd  conditions  of  the  evidences  of  title,  tlie  actual  and 
const iiict ive  notice  iuijiarted  b_v  re^^ist lat ion,  and  the  access 
which  the  jjurchaser  has  to  information  conceinin}^  the  title, 
would  seem  to  render  inoperative  the  Knjiiisli  inle  by  remov- 
ing the  reason  which  occasioned  it;  and,  wliile  it  is  custom- 
ary in  (his  country,  as  in  Enj^land,  foi-  the  vendor  to  prepare 
and  furnish  an  abstract  of  title,  either  i)endinj^  or  after  con- 
summation of  the  sale,  it  does  not  appear  that  this  can  be 
demanded  as  a  matter  of  ri^lit,  but  is  rather  the  result  of  the 
contract  or  conditions  of  sale. 

In  England,  where  titles  are  not  registered,  save  in  a  few 
counties,  the  vendor,  in  order  to  show  j)erformance  or  an  offer 
to  perform  on  his  part,  whether  in  an  action  at  law  for  the 
purchase  money  or  a  suit  in  equity  to  compel  performance  by 
the  vendee,  must  allirmatively  prove  his  title.  In  this  coun- 
try, where  titles  are  matters  of  record,  and  at  all  times  open 
for  inspection,  a  different  rule  prevails.  This  doctrine  has 
often  been  asserted  in  actions  by  the  vendor  for  the  purchase 
money  ;^  and  it  has  been  expressly  held,  in  equity,  that  a  ven- 
dor may  rely  upon  his  tender  of  conveyance  without  producing 
the  evidences  of  his  title,  the  burden  being  upon  the  pur- 
chaser to  show  such  a  defect  as  would  justify  him  in  refusing 
to  accept  the  deed.^ 

It  would  seem,  therefore,  that  where  the  parties  do  not  stip- 
ulate that  the  condition  of  the  title  shall  be  ascertained  from 
any  particular  abstract,  or  from  an  abstract  to  be  furnished 
by  the  vendor,  it  is  incumbent  on  the  purchaser,  should  lie 
desire  to  avail  himself  of  this  assistance,  to  provide  the 
abstract  himself  and  to  satisfy  himself  as  to  the  condition  of 
the  title.5 

>;  290.  When  the  abstract  is  made  a  condition.  \Yhile  the 
furnishing  of  an  abstract  cannot  be  said  to  be  demandable  as 
a  matter  of  legal  right,  even  where  a  custom  to  that  effect 
may  prevail,  it  is  nevertheless  a  condition  precedent  in  most 

•■'Little  V.  Paddleford,  13  N.  H.  308;  Daily  v.  Litchfield,  10  Mich. 
167.  38. 

■*  Espy  V.   Anderson,   14    Pa.   St.        •'•  Easton  v.  Montgomery,  90  Cal. 


350  THE   ABSTRACT. 

sales  b}'  tlio  express  agreemeut  of  the  parties.  W4iere  parties 
make  a  eontraet  for  the  sale  or  exehanj^e  of  lands  which  pro- 
vides for  the  exhibition  of  an  abstract  showing  title  in  the 
proi)osin<;  parties  b.v  a  day  named,  this  is  a  condition  prece- 
dent to  be  performed  before  either  party  in  case  of  an 
exchange,  or  the  vendor  in  case  of  sale,  can  call  upon  the  other 
to  perform  the  aj;reement;  and,  if  the  abstract  is  not  satis- 
factory or  fails  to  show  the  title  agreed  to  be  made,  the  other 
may  elect  to  consider  the  contract  at  an  end."  The  party 
required  to  furnisli  the  abstract  has  no  right  to  dtnnaud  an 
extension  of  time  in  which  to  furnish  an  additional  abstract, 
the  first  not  showing  title  as  agreed;  and  if  the  other  party 
refuses  to  give  such  extension  or  refuses  to  jjerform  for  want 
of  an  abstract  in  proper  time  showing  title,  this  will  put  an 
end  to  the  contract.'^ 

But  where  the  contract  provides  that  the  vendor  is  to  fur- 
nish an  abstract,  and  notice  is  given  where  such  abstract  may 
be  found  and  inspected,  it  would  seem  that  failure  of  the 
vendor  to  furnish  the  same,  when  no  objection  is  urged  at  the 
time,  will  not  authorize  the  purchaser  to  rescind.^ 

§  291.  Right  to  time  for  examining  title.  Usually  the  time 
allowed  for  an  investigation  of  the  title  is  fixed  by  the  pro- 
visions of  the  contract,  and  this  is  almost  invariably  the  case 
where  the  vendor  also  agrees  to  furnish  or  exhibit  an  abstract. 
But  even  in  the  absence  of  such  stipulations  the  purchaser  is 
entitled  to  a  reasonable  time  for  such  examination  before 
making  payment;'*  and  a  stipulation  to  this  effect  may  be 
implied  where  the  conditions  of  the  contract  i^rovide  for  a 


307;  Espy  v.  Anderson,  14  Pa.  St.  objection   was   made   to   this;    but 
308.  subsequently  the  vendor  was  noti- 
c  Howe  V.  Hutchison,  105  HI.  501.  fled  by  the  puixhaser  that  he  de- 
7  Howe  V.  Hutchison,  105  HI.  501.  clined  to  carry  out  the  contract  be- 
«  Papin  V.  Goodrich,  103  HI.  86.  cause  it  was  then  too  late,  but  this 
The  abstract  in  this  case  was  in  objection  the  court  held  to  be  un- 
the   hands   of   a   third  party   who  tenable;  and  as  the  purchaser's  re- 
then  held  a  loan  upon  the  property  fusal  to  perform  was  placed  on  an- 
which  the  purchaser,  by  the  terms  other  ground  than  the  failure  to 
of  the  contract,  was  bound  to  pay.  furnish  the  abstract,   it   was  held 
The  purchaser  was  notified  where  that  no  right  of  rescission  existed. 
the  abstract  was,  and  that  it  could  o  Allen  v.  Atkinson,  21  Mich.  351. 
be  examined  there  at  any  time.  No 


THE    ABSTRACT.  351 

return  of  the  deposit  in  case  the  title  should  be  found  defec- 
tive.io 

§  292.  Good  and  sufficient  abstract.  It  has  now  become 
eoiiimou  to  inscil  in  nj^rcciiu'iits  for  sale  and  conveyance  not 
only  a  .stipulation  for  a  "^ood  and  Hunicicnl"  deed  of  convey- 
ance of  the  property  in  (juestion,  but  also,  where  the  vendor 
undertakes  and  aj^rccs  to  exhibit  his  title,  a  clause  providiuj; 
for  the  furnisliinj^  of  a  "good  and  sullicicnt"  or  "luerchantable" 
abstract  of  title.  In  many  localities  this  clause,  if  employed, 
would  occasion  no  controversy,  and  local  custom  would  prob- 
ably be  sutlicient  to  indicate  what  was  meant.  Yet  in  other 
places  which  have  come  under  the  observation  of  the  writer 
the  proper  answer  to  ''What  constitutes  a  '<j^ood  and  sufficient' 
abstract?"  has  been  the  subject  of  much  heated  controversy 
among  real  estate  brokers  and  attorneys.  The  former  class, 
as  a  rule,  care  little  about  the  abstract,  which  they  are  ever 
inclined  to  regard  with  suspicion,  and  consider  as  the  most 
dangerous  ingredient  that  enters  into  the  composition  of  the 
trade.  Should  it  be  rejected  by  the  attorney  who  has  been 
selected  to  "pass  the  title"  as  insutiicieut  or  unreliable,  a  dis- 
agreeable hitch  ensues,  and  the  negotiation  itself  must  often 
be  abandoned.il  No  efifort  has  ever  been  made  to  settle  this 
much-vexed  question  by  a  statutory  enactment,  and  from  the 
peculiar  nature  of  the  subject  probably  no  movement  in  this 
direction  will  ever  be  made.  Indeed,  none  can  be  made  with 
advantage;  and  the  question  can  best  be  settled,  if  at  all,  by 

10  Easton  v.  Montgomery,  90  Cal.  rejection  of  these  various  classes 
307.  of    abstracts    when    presented    for 

11  "It  has  been  found  that  the  ab-  acceptance  by  borrowers  and  sell- 
stracts  of  title  upon  which  trans-  ers;  abstracts  which  readily  pass 
fers  are  made  are  of  many  different  current  with  many  being  rejected 
kinds  and  of  widely-varying  value  as  valueless  by  others.  From  this 
— originals  from  numerous  private  lack  of  uniformity  arises  constant 
firms  and  from  the  county  re-  friction  and  confusion;  in  many 
corder — copies  written  and  print-  cases  heavy  expenditures  are  en- 
ed,  certified  and  uncertilied,  is-  forced  upon  unfortunate  owners  in 
sued  by  abstract  men,  printers,  replacing  rejected  abstracts  with 
lawyers,  notaries  and  real  estate  acceptable  ones;  sales  are  broken 
men.  It  has  been  found  that  there  up,  owners  disgusted  with  real  es- 
is  a  wide  diversity  of  practice  on  tate;  agents  dissatisfied  over  the 
the  part  of  our  agencies  and  the  loss  of  time  and  commissions,  and 
attorneys  as  to  the  recognition  or  attorneys    in    previous    cxamina- 


352  THE    ABSTRACT. 

the  institution  and  maintenance  of  a  uniform  custom.  In 
l)oi)ulous  cities  real  estate  boards,  acting?  in  concert  with  the 
bar,  may  do  mudi  to  definitely  settle  local  usajjes  by  prescrib- 
ing conditions  or  delininj;  terms.  In  other  places  bar  asso- 
ciations might  advantageously  decide  what  shall  and  what 
shall  not  be  taken  as  a  "good  and  suflicient"  abstract  in  their 
respective  localities.  No  judicial  decisions  directly  involving 
the  point  under  consideration  are  known  to  the  writer,  or 
could,  on  diligent  search,  be  found, 

(Jenerally  considered,  a  stipulation  to  deliver  a  good  and 
sufficient  abstract  is  fully  complied  with  where  the  synopsis 
furnished  purports  to  be  a  full  search  through  the  jjublic 
offices,!-  jg  arranged  in  an  orderly  manner  for  x)erusal  and  its 
correctness  is  certified  by  some  person  of  known  skill  and 
undoubted  financial  responsibility.  More  than  this  could  not 
reasonably  be  demanded;  but  it  would  seem  that,  for  the 
double  purpose  of  convenience  and  safety,  nothing  less  should 
be  accepted. 

I'ublic  officials,  usually  the  recorder  of  deeds  or  the  person 
having  the  official  care  and  custody  of  real  estate  records,  are 
in  some  states  empowered  by  law  to  prepare  and  furnish 
abstracts  of  the  records,  certifying  the  same  under  their  hands 
as  such  officers,  and  attesting  their  certificates  with  the  seal 
of  their  office.  Compilations  so  made  are  generally  regarded 
as  ''regular,"  and  taken  to  be  a  full  compliance  with  the  stipu- 
lation to  furnish  a  good  or  merchantable  abstract.  Expe- 
rience has  demonstrated,  however,  that  the  best  and  most 
satisfactory  work  is  done  by  private  persons  or  firms  exclu- 
sively engaged  in  the  business  of  furnishing  abstracts,  pro- 
vided their  certificates  are  backed  by  sufficient  financial  ability 
to  respond  in  damages  for  error  or  omission. 

§  294.  Originals  and  copies.  The  worth  or  worthlessness 
of  an  abstract  is  often  judged  by  its  character  as  an  original 
examination  or  as  a  copy  of  the  same.    Strictly  speaking,  an 

tions  annoyed  and  embarrassed  at  his  own  indexes  to  the  public  rec- 

the     throwing    out     of     abstracts  ords,  but  this  distinction  is  verbal 

passed   upon   by  them."      Extract  only  and  in  no  way  lessens  his  lia- 

from  Committee  Report  to  Chicago  bility   in  case  of  an   incorrect  or 

Real  Estate  Board,  1887.  insufficient  statement  of  the  condi- 

12  The  examiner  usually  certifies  tion  of  the  title, 
that  his  examination  has  been  of 


THE    ABSTRACT.  353 

"original"  is  the  first  manuscript  work  iiiiidc  diicctlj  from 
tlic  i»iil)lic'  records;  but  as  private  indices  liave  now  come  into 
•^('ueral  use  to  siuiplify  aud  systematize  the  making  of 
abstracts,  the  compilations  made  from  these  indices  by  the 
owners  are  generally  I'cgarded  and  taken  as  "originals." 
Duplicates  aud  copies  of  these  originals,  made  and  certified 
by  the  maker  of  the  originals,  are  for  all  intents  and  purposes 
as  good  as  such  originals,  and  may  fairly  be  classed  with  them. 
An  abstract  in  either  of  the  above  forms,  possessing  the  inci- 
dents prescribed  in  the  preceding  section,  is  in  every  sense  of 
the  word  "merchantable,"  and  should  satisfy  any  reasonable 
purchaser.  J>ut  in  addition  to  these  forms  it  is  not  uncom- 
mon for  owners  of  subdivisions  and  others  to  multiply  copies 
of  the  original  through  the  media  of  manuscript  copyists,  the 
"hectograph"  aud  the  printing  press,  with  certifications  by  the 
writers  or  the  printer,  certificates  of  comparison  by  notaries, 
and  often  with  no  certification  whatever.  All  of  these  forms 
are  bad;  they  differ  only  in  degree,  not  in  kind. 

It  has  been  claimed  that  i^rinted  copies  are  far  more  reliable 
and  trustworthy  than  where  a  number  of  written  copies  are 
made  from  the  same  original.  Undoubtedly  this  is  true;  and 
where  the  work  is  properly  and  conscientiously  performed,  a 
printed  copy  is  much  to  be  preferred.  But  the  fact  remains 
that  attorneys  frequently  refuse  to  accei)t  them  or  predicate 
o]»inions  upon  them,  and  the  general  impression  seems  to  pre- 
vail that  they  are  inherently  vicious.  The  reason  for  this  lies 
mainly  in  the  fact  that  the  temptation  for  the  interpolation  of 
foreign  matter  or  the  suppression  or  expurgation  of  original 
matter  is  so  great  that  unscrupulous  parties  not  infrequently 
do  not  hesitate  to  resort  to  such  expedients  to  conceal  the 
defects  of  imperfect  titles.  A  printed  copy,  if  nmde  by  an 
honorable  and  responsible  i)erson,  who  at  the  close  of  such 
co])y  appends  a  certificate  of  verification,  loses  some  of  its 
objectionable  features;  yet  this  is  but  a  poor  protection,  as 
the  printer  merely  presents  what  he  finds,  and  if  foreign  mat- 
ter has  been  introduced  into  the  original  it  will  of  course  be 
reproduced  in  the  duplicate.  Nor  does  the  fact  that  a  com- 
parison of  such  duplicate  with  the  original  has  been  made  by 
a  notary,  and  of  which  fact  a  certificate  under  his  hand  and 
official  seal  accouipauies  the  copy,  make  the  copy  much  if  any 
more  reliable.    In  both  of  these  instances  the  opportunities  for 

23 


354  THE    ABSTRACT. 

fraud  and  imposition  arc  present;  while  ignorance,  careless- 
ness, mistake  and  accident  may  all  conspire,  where  no  bad 
faith  exists,  to  render  .such  copy  inaccurate  and  unreliable. 

The  forej^oing-  remarks  have  reference  to  printed  copies  i)re- 
pared  by  the  owners  of  subdivisions  and  issued  on  their 
authority  only.  This  has  been  a  very  common  practice  in 
every  city  of  importance  in  many  states,  particularly  in  the 
West,  and  the  prejudice  against  this  form  of  copy  has  arisen 
through  the  fraudulent  practices  which  often  accompanied 
the  method.  If  a  printed  copy  is  properly  certified  as  correct 
by  the  person  who  prepared  the  original,  or  by  some  other 
trustworthy  person  of  financial  responsibility,  it  is  not  to  be 
distinguished  from  an  authentic  copy  in  any  other  form. 

§  295.  What  the  abstract  should  show.  The  primary  office 
of  the  abstract  is  to  save  time  and  facilitate  labor.  Its  object 
is  to  relieve  intending  purchasers  from  the  necessity  of  exam- 
ining the  public  records,  and  inspecting  such  portions  thereof 
as  may  affect  the  title  wiiich  forms  the  object  of  the  sale. 
This  burden  is  imposed  by  law,  and  cannot  be  avoided;  and 
hence  the  abstract  should  be  so  compiled  as  to  fully  apprise 
the  purchaser  of  every  incident  connected  with  the  title  as 
disclosed  by  the  records.  This  would  include  the  material 
and  operative  parts  of  all  instruments  of  conveyance  of  every 
kind  and  nature,  together  with  full  and  lucid  statements  of  all 
liens,  charges  or  liabilities  to  which  the  land  might  be  sub- 
ject; and  the  synopsis  should  be  so  arranged,  with  reference 
to  chronological  sequence,  as  to  properly  show  the  origin, 
course  and  incidents  of  the  title,  without  the  necessity  of 
referring  to  the  original  sources  of  information.  For  all  j)rac- 
tical  purposes  of  examination  the  abstract  takes  the  place  of 
the  records,  and  presumably  obviates  all  necessity  of  reference 
thereto;  hence  it  should  be  full  and  explicit,  with  liberal 
quotations  from  the  instruments  whenever  a  presentation  of 
the  exact  language  employed  is  necessary  to  a  better  under- 
standing of  its  import,  and  not,  as  is  too  often  the  case,  merely 
a  sparsely-filled  and  imperfectly-w'oven  chain,  which  usually 
serves  no  better  purpose  than  a  mere  index,  throwing  upon 
the  purchaser  all  the  labor  of  direct  examination  whenever 
questions  of  moment  are  raised. 

Nor  should  the  abstract  be  confined  to  the  elucidation  of  a 


THE    ABSTRACT.  355 

single  issue,  as  the  mere  tracing  of  tiie  title  of  the  vendor  to 
the  exclusion  of  adverse  titles,  or  claims,  or  evidences  of  title. 
This  is  or  was  formerly  the  English  practice;  and,  as  the 
American  abstract  is  only  an  a<laj)tation  of  the  methods  of 
the  English  conveyancers,  it  is  not  uncommon  in  some  parts 
of  the  count ly  to  find  abstracts  comjiiled  on  this  plan — that 
is,  "an  abstract  of  the  title  of  .Jno.  Smith  to,"  etc.  A  properly- 
prepared  abstract  shows  the  true  condition  of  the  title,  and 
the  oOice  of  counsel,  to  whom  the  abstract  is  intrusted  for 
examination,  is  to  decide  in  whom  the  title  vests.  A  purchaser 
examining  the  records  must  observe  everything  that  lies  in 
the  apparent  course  of  title,  and  in  most  cases  everything 
that  in  any  way  implicates  it,  whether  adverse  or  consistent 
with  the  ownership  of  the  vendor.  This  the  abstract  should 
show.  The  judgments,  decrees  and  orders  of  courts,  when 
they  affect  the  title  directly  or  collaterally,  are  also  of  the 
highest  importance,  and  frequently  the  anterior  proceedings 
which  culminated  in  such  judgments  or  decrees;  while  tax 
levies,  assessments  and  liens  and  sales  made  thereunder  are 
e(pially  important.  These  comprise  the  essentials  of  an 
abstract,  and  the  omission  of  any  of  them  is  to  render  the 
abstract  imperfect. 

In  addition  thereto  further  information  may  be  required  by 
counsel,  which  is  usually  furnished  by  the  vendor  from  other 
sources  than  the  public  records.  Thus,  in  the  case  of  titles  by 
descent,  the  proof  of  heirship  upon  the  probate  of  the  ances- 
tor's estate  takes  the  place  of  the  pedigrees  so  often  annexed 
to  English  abstracts;  but  if  there  has  been  no  probate,  the 
infonnation  must  be  supplied  bj'  other  means.  Generally  this 
is  accomplished  by  attidavits  of  persons  cognizant  of  the  facts. 
So,  also  with  respect  to  marriages.  It  is  onl}'  during  very 
recent  years  that  any  systematic  attempt  has  been  made  on 
the  part  of  the  state  to  collect  and  preserve,  in  the  fonii  of 
authoritative  records,  any  data  with  respect  to  the  social  or 
domestic  relations  of  its  citizens.  Marriage  registers  have 
usually  been  kept  as  part  of  the  parochial  records  of  many 
denominational  churches;  and,  for  want  of  better  evidence, 
entries  made  in  such  registers  have  been  received  as  evidence 
of  the  facts  they  purport  to  state.  State  registration  has  been 
established  in  many  states,  and  greater  pains  are  now  gen- 
erally used  to  i)reservc  reliable  data  of  births,  deaths  and 


35G  THE    ABSTRACT. 

luaniajii's;^'*  yet,  even  where  such  rej;isteis  are  kept,  the 
iuforniation  they  furnish  must  often  be  supplemented  by 
evidence  aliunde  in  order  to  show  identity  of  person.  This 
evidence  usually  takes  the  form  of  an  affidavit  reciting  the 
facts.  Such  affidavits,  being  only  ex  parte  statements,  and 
because  not  being  made  under  the  sanction  of  a  court  or  in 
any  legal  proceeding,  are  not  strictly  evidence  for  any  pur- 
pose, yet,  being  usually  all  that  can  be  adduced,  they  are 
resorted  to  by  counsel  under  a  choice  of  difficulties,  and  have 
been,  as  it  were,  by  common  consent  of  the  profession,  adopted 
as  competent  proof  in  the  examination  of  titles  and  the  testi- 
mony taken  as  corroborative  evidence  of  general  reputation, 
etc.  Again,  such  affidavits,  though  inadmissible  under  the 
rules  of  evidence,  are  valuable  from  the  reason  that  they  show 
that  living  persons  can  at  the  time  establish  the  facts  therein 
recited. 

§  296.  Root  of  title.  There  must  of  necessity  be  some  definite 
point  at  which  an  examination  of  title  should  commence,  and 
beyond  which  it  should  not  necessarily  be  extended;  but  in 
the  United  States  there  is  no  rule,  nor  can  there  be  said  to  be 
any  general  custom  having  the  force  of  a  rule,  which  provides 
with  any  degree  of  certainty  how  far  back  an  examination 
should  extend.  It  was  fonnerly  customary  in  England  to 
commence  at  some  agreed  point  in  the  history  of  the  title 
sixty  years  back,  and  Mr.  Sugden  and  other  English  writers 
announce  this  as  a  general  rule;  but  recent  legislation  in  that 
country  has  considerably  abridged  the  period  of  limitation^ 
and,  by  so  doing,  removed  the  necessity  of  the  rule.^^ 

13  Such  records  when  made  and  years  shall  be  substituted  as  the 

kept  pursuant  to  law,  are  received  period  of   commencement  of  title 

as    presumptive    evidence    of    the  which  a  purchaser  may  require  in 

marriage,    birth    or    death    so    re-  place   of   sixty   years,   the   former 

corded.     State  v.  Wallace,  9  N.  H.  period  of  commencement,  but  with 

515;  Milford  v.  Worcester,  7  Mass.  a    proviso   that    earlier    title    than 

48;  State  v.  Potter,  52  Vt.  33;  Niles  forty   years    may    be    required    in 

V.  Sprague,  13  Iowa,  198.  cases    similar   to   those    in    which 

n  In  England,  by  statute  (37  and  earlier  title  than  sixty  years  was 

38  Vict.  ch.  78),  on  the  completion  required. 

of  any  contract  of  sale  of  land  Upon  a  sale  of  leasehold  prop- 
made  after  December  31,  1874,  and  erty,  without  any  condition  pro- 
subject  to  any  stipulation  to  the  tecting  the  vendor  against  the  pro- 
contrary    in    the    contract,    forty  duction   of   deeds,   the   vendor    is 


THE    ABSTRACT.  357 

Wlu'iicvci-  piactirablc  tlu'  absUact  should  disclose  the  incep- 
tion of  tillc,  iiTesiK'ctivc  of  lime;  l)iit  where  this  cannot  be 
readily  done,  it  should  coninience  willi  some  well-authenticated 
fact  at  some  period  lemote  enouj^h  to  cover  any  adv<'rse  inter- 
est or  equity  lliat  (ituld  successfully  be  asserted.  This  period 
wouhl,  of  course,  he  tixed  with  reference  to  the  statutes  of 
limitation.  Thus,  ten  y«'ars,  and  in  souie  states  seven  years, 
would  be  sufticient  to  cover  jud^uient  liens,  and  possibly  some 
other  classes;  while  twenty  years,  which  is  the  term  during; 
which  actions  will  lie  for  the  recovery  of  lands,  wcuild  in  a 
majority  of  cases  be  sulTicient,  15ut,  as  the  disability  of 
parties,  interveninjj;  estates,  aud  other  circumstances  mij;ht 
be  sutticient  to  prevent  the  statute  from  runninj,',  whatever 
point  is  selected  as  the  root  of  title,  great  care  must  be 
emjdoyed.  and  exigencies  will  arise  in  the  course  of  many 
titles  that  would  justify  the  rejection  of  the  same  when  a 
period  of  not  more  tlian  twenty  years  is  covered  by  the  search. 

§  297.  Perusing  the  abstract.  Mr,  Sugden,  among  his  many 
excellent  suggestions  relative  to  examinations  of  title,  says: 
*'The  perusal  should,  if  the  length  of  the  abstract  will  j)erniit 
of  it,  be  finished  at  one  sitting,  although  any  diflficult  point  of 
law,  the  whole  bearing  of  which  is  not  ascertained,  may  i)rop- 
erly  be  reserved  for  further  and  separate  consideration. "^^^ 
He  further  suggests  that  it  may  be  well  to  glance  over  the 
abstract  in  the  first  place  in  order  to  obtain  a  general  view  of 
the  title,  and  that  experience  will  rapidly  point  out  when  a 
subsequent  part  of  the  abstract  may  be  looked  into  before  its 
proper  turn;  but  that,  generally  speaking,  an  abstract  should 
be  perused  but  once,  and  that  once  effectually.  It  will  be 
remembered,  however,  that  the  abstract  to  which  Mr.  Sugden 
referred  was  very  ditl'erent  in  its  general  complexion  and 
make-u])  from  the  abstracts  now  in  curri'nt  use  in  this  country, 
and  was  invariably  accomjianied  by  the  muniments  which  it 
professed  to  exhibit.  The  ditTerence  in  the  plan  of  comi)i!ati()n, 
as  well  as  the  etfect  of  the  instruments  with  reference  to  regis- 
tration, notice  and  other  incidentals  not  common  to  the  English 

bound  to  produce  the  lease  which        »s  2  Sugd.  on  Vend.  (8th  Am.  ed.) 
is   the   root   of   his  title,   although    9. 
the  lease  is  more  than  sixty  years 

old. 


358  THE    ABSTRACT. 

abstracts,  renders  a  somewhat  dillereut  course  necessary  from 
that  pointed  out  by  Mr.  Sugden.  Whether  the  abstract  be 
long  or  short,  and  the  title  simple  or  complicated,  a  general 
perusal,  in  order  to  obtain  a  preliminary  view,  should  first  be 
made.  This  perusal  is  only  to  establish  the  fact  of  an  apparent 
chain  of  title  from  its  source — the  government — or  from  some 
person  proposed  in  wiiom  an  indefeasible  title  is  assumed  to 
have  been  vested.  To  assist  in  arriving  at  a  correct  estimate 
an  analysis  of  the  abstract  must  always  be  made  in  intricate 
cases,  and  the  same  will  be  found  useful  in  every  case.  Having 
established  the  fact  of  apparent  title  extending  in  unbroken 
sequence  from  the  initial  point  to  the  j^erson  by  whom  it  is  last 
asserted,  a  critical  review  of  every  remove^ ^  must  then  be  made 
to  determine  its  effect  and  validity  in  much  the  same  manner, 
and  for  much  the  same  jjurpose,  as  the  English  counsel  exam- 
ines the  muniments.  All  defects,  whether  of  form  or  sub- 
stance, are  noted  upon  the  analysis  just  mentioned,  together 
with  notes  of  discrepancies,  queries,  objections  and  requisi- 
tions for  further  information.  It  would  be  unwise,  however, 
to  lay  down  any  unvarying  rule  for  a  matter  of  this  kind. 
Men's  minds  are  not  alike,  and  the  methods  that  insure  the 
best  results  in  the  case  of  one  may  be  entirely  inadequate  in 
the  case  of  another.  The  counsel's  personal  professional  habits 
will,  after  all,  be  the  best  guide.^'^ 

i«  For   want   of   a   better  name,  from  the  beginning,  and  referred 

each  link  in  the  chain,  whether  by  to  by  number  whenever  occasion 

deed,    will,    mortgage,    lease,    etc.,  calls  for  reference, 

is  called  a  "remove;"  and  the  re-  i^  gee    Warvelle    on    Abstracts, 

moves  are  all  numbered  seriatim  612. 


CHAPTER   XI. 

OBJECTIONS  TO  TITLE. 


Legal  title  outstanding  in 
trustee. 

Title  acquired  in  violation 
of  trusts. 

Party-walls. 

Unopened  streets. 

Clouds  upon  title. 

Purchase  with  notice  of  de- 
fects. 

Variance  and  discrepancy 
— Flaws. 

Stipulations  for  failure  of 
title. 

Undertakings  in  respect  to 
title. 

Immaterial  defects. 

Waiver  of  objections  to 
title. 

Effect  of  delay  in  making 
objection. 

Defects  in  the  subject-mat- 
ter. 


!^298.  Generally  considered.  The  object  of  au  abstract  of 
the  title  is  to  facilitate  iuvestigation,  and  to  enable  intending; 
purchasers  to  acquaint  themselves  with  the  condition  of  the 
title  they  propose  to  buy.  It  takes  the  place  of  an  examina- 
tion of  the  records,  and  is  supposed  to  disclose  all  the  informa- 
tion material  or  necessary  to  a  ])ro])er  understandin<2:  of  the 
vendor's  claim  of  ownership.  The  duty  of  invest ijjation  is 
imposed  by  law  and  cannot  be  avoided;  and  if  the  purchaser 
sees  fit  to  forepjo  such  examination  he  does  so  at  liis  i)eril,  and 
cannot  be  heard  to  disclaim  any  knowledjjje  which  such  exam- 
ination would  have  afforded.^  \Yhether  such  investi<^ation  be 
made  by  inspection  of  the  records  or  by  a  perusal  of  the 
abstract,  it  is  a  further  duty  of  the  purchaser  to  note  all  such 

1  Every  man  purchases  at  his  the  title  and  competency  of  the 
peril,  and  is  bound  to  use  some  seller.  It  will  not  answer  to  rest 
reasonable  diligence  in  looking  to    upon    mere    reputation    or    belief, 

359 


298. 

Generally  considered. 

§319. 

299. 

A  marketable  title. 

300. 

"Satisfactory"  title. 

320. 

301. 

"Good"  title. 

302. 

Title  as  affected   by   attor- 

321. 

ney's  opinion. 

322. 

303. 

Claims  of  title. 

323. 

304. 

Title  of  record. 

324. 

306. 

Title  by  adverse  possession. 

307. 

Ancestral  titles. 

325. 

308. 

Spurious  deeds. 

309. 

Hazard  of  litigation. 

326. 

310. 

Pending  litigation. 

311. 

Unsatisfied  judgment. 

327. 

312. 

Outstanding    incumbrances. 

313. 

C  0  n  t  i  nued  —  Unsatisfied 

328. 

mortgage. 

329. 

314. 

Unpaid   taxes. 

315. 

Unreleased  dower  rights. 

330. 

316. 

Dowress'  death. 

317. 

Title  subject  to  defeasance. 

331. 

318. 

Trusts  and  other  equities. 

3G0  OBJECTIONS    TO    TITLE. 

facts  as  may  toud  to  show  imi)aii'iiR'iits,  defects,  flaws  or  other 
imperfections  of  title,  and  to  found  objections  upon  them. 
He  is  entitled  to  satisfactory  explanations,  and  has  the  right 
to  call  upon  his  vendor  to  make  good  any  defects.  This  is 
accomplished  by  what  are  technically  termed  ''requisitions." 
If  a  descent  is  shown,  but  not  in  a  satisfactory  manner,  and  a 
subsequent  deed  executed  by  the  heirs  at  law  of  the  person 
last  seized,  a  requisition  should  be  made  for  further  evidence 
touching  the  legitimacy  of  the  claim  of  title  thus  asserted. 
Partitions  among  heirs  by  the  mutual  interchange  of  deeds 
call  for  inquiry  where  a  minor's  rights  may  be  affected; deaths 
and  marriages,  claims  for  dower  and  a  number  of  like  incidcnits 
may  all  call  for  inquiry,  and  serve  as  proper  foundations  upon 
which  to  lodge  objections. 

The  general  subject  of  this  chapter  is  inseparably  connected 
with  that  of  specific  performance,  and  the  details  of  the  sub- 
ject as  hereinafter  developed  are,  in  the  main,  properly  classed 
with  the  different  phases  of  the  law  relating  to  specific  per- 
formance and  rescission  whenever  those  subjects  are  treated. 
But  inasmuch  as  objections  are  usually  made  at  or  about  the 
time  of  the  examination  of  the  title,  they  seem  to  follow  in  a 
sort  of  logical  sequence  at  this  stage  of  the  work;  and  it  is 
hoped  that  the  indulgent  reader  will  see  no  incongruity  in 
the  introduction  of  the  subject  at  this  time,  but  will  kindly 
permit  this  chapter  to  supplement  the  succeeding  chapters  on 
specific  performance  and  rescission,  despite  the  fact  that  it 
precedes  them  in  the  order  of  arrangement. 

The  terms  of  the  contract  of  sale  will,  in  many  instances, 
determine  the  question  of  title  when  raised;  but  ordinarily, 
while  a  purchaser  will  not  be  compelled  to  accept  a  title 
palpably  defective,  he  cannot  justify  his  refusal  to  accept  by 
mere  captious  objections;  nor  is  it  sufticient  for  him,  when  the 
jurisdiction  of  a  court  is  invoked  to  compel  him  to  perfonn 
his  contract,  merely  to  raise  a  doubt.  A  defect  in  a  record 
title  will,  under  most  circumstances,  furnish  a  defense  to  a 
purchaser,  particularly  where  it  affects  the  value  of  the  prop- 
erty or  would  interfere  with  its  sale,  and  thus  render  it 
unmarketable  ;2  but  there  is  no  inflexible  rule,  in  the  absence 

unless  the  party  intends  to  rely  2  Shriver  v.  Shriver,  86  N.  Y. 
upon  his  covenants  alone.  Havens  575.  If  a  written  contract  for  the 
V,  Bliss,  26  N.  J.  Eq.  363.  sale   of   land   contains   all    of   the 


OBJECTIONS    TO    TITLEJ. 


3G1 


of  stipulations  to  the  conlraiy,  that  a  vciulor  iinisl  furnish  a 
perfect  title  of  record,  and  it  has  frecjueutly  been  held  that 
defects  in  the  record  or  paper  title  may  he  removed  by  ])arol 
eviilcnc*'.-'  AVhcre,  however,  the  title  depcnils  upon  facts 
incapable  of  satisfactory  i)roof,  or  if  capable  are  not  so  proved, 
objections  will  properly  lie,  and  the  j)urchaser  will  be  under 
no  oblij,'ation  to  comi)lete  his  contract. 

§299.  A  marketable  title.  In  the  absence  of  any  stipula- 
tions relative  to  the  character  of  the  title  to  be  conveyed,  a 
''marketable"  title  is  always  presumed;  that  is,  a  title  free 
from  flaws  or  serious  defect,  and  of  such  a  character  as  will 
assure  to  the  purchaser  the  quiet  and  peaceable  jjossession  of 
the  property.-*  Huch  a  title  should  extend  to  show  a  full  and 
perfect  ri<iht  of  property  and  present  possession  vested  in  the 
vendor ;5  it  should  embrace  the  entire  estate  or  interest  sold, 
which,  unless  otherwise  specified,  should  be  the  fee,"  and  that 
free  from  the  lien  of  all  burdens,  charges  or  incumbrances." 
It  should  not  only  be  free  from  litigation,^  but  from  palpable 
defects*^  and  grave  doubts.^^    It  should  further  consist  of  both 

the  legal  and  ecjuitable  titles,^ ^  and  be  fairly  deducible  of 
record. 12 

It  is  believed  that  the  foregoing  enumeration  fairly  answers 
all  the  reasonable  recjuirements  that  go  to  constitute  a  mar- 
ketable title,  particularly  as  this  term  is  understood  in  the 
United  States;   but  it  must  not  be  inferred  that  a  title  to  be 


other  requisites  necessary  to  give 
it  validity  and  to  make  it  binding 
on  the  vendor,  the  law  will  imply 
an  agreement  by  him  that  he  has 
and  will  give  to  the  purchaser  a 
good  title.  Winn  v.  Henry,  84  Ky. 
48. 

3  Hellreigel  v.  Manning,  97  N.  Y. 
56. 

4  Barnard  v.  Brown,  112  Mich. 
452. 

5  Delevan  v.  Duncan,  49  N.  Y. 
485;  Davis  v.  Henderson,  17  Wis. 
105;  Jeffries  v.  Jeffries.  117  Mass. 
184. 

oTaft  v.  Kessel,  IG  Wis.  273; 
Powell  v.  Conant.  33  Mich.  396. 


7  Roberts  v.  Bassett,  105  Mass. 
407;  Jones  v.  Gardner,  10  Johns. 
(N.  Y.)  266;  Davidson  v.  Van  Pelt, 
15  Wis.   341. 

s  Speakman  v.  Forepaugh,  44  Pa. 
St.  363;  Jordan  v.  Poillon,  77  N. 
Y.  518. 

"  Smith  v.  Robertson.  23  Ala. 
312;  Holland  v.  Holmes,  14  Fla. 
390;  Jenkins  v.  Fahey.  73  N.  Y. 
355. 

10  Scott  v.  Simpson,  11  Heisk. 
(Tenn.)  310;  Moore  v.  Appleby. 
108  N.  Y.  237. 

1'  Taft  v.  Kessel.  16  Wis.  273. 

1^  Martin  v.  Judd,  81  111.  488. 


3G2  OBJECTIONS    TO    TITLE. 

marketable  must  possess  all  of  the  incidents  mentioned.  Thus, 
ji  title  may  be  marketable  although  depending  on  presumption 
grounded  merel}^  on  the  lapse  of  time,  a  clear  adverse  posses- 
sion for  twenty  years  making  a  title  which,  in  many  instances, 
a  purchaser  may  not  refuse.^^ 

But  in  every  instance,  however  the  title  may  be  derived,  it 
must  be  free  from  reasonable  doubt.^^  If  it  is  open  to  judicial 
doubt  it  is  not  marketable,  although  what  is  sufficient  ground 
for  judicial  doubt  is  not  to  be  conclusively  reduced  to  fixed 
and  determined  principles;  for  that  depends  in  some  degree 
upon  the  discretion  of  the  court.  A  title  may  be  doubtful 
because  of  the  uncertainty  of  some  matter  of  fact  appearing 
in  the  course  of  the  deduction  of  it;  and  if,  after  the  vendor 
has  produced  all  the  proofs  that  he  can,  a  rational  doubt  still 
remains,  the  title  is  not  marketable.^^  A  purchaser  will  not 
be  compelled  to  complete  his  purchase  where  there  is  some 
reasonable  ground  of  evidence  shown  in  support  of  an  objec- 
tion to  the  title,  or  where  the  title  depends  upon  a  matter  of 
fact  which  is  not  capable  of  satisfactory  proof,  or,  if  capable 
of  that  proof,  yet  is  not  so  proved.^ ^  Nor  will  the  courts 
compel  the  specific  performance  of  a  contract  by  the  purchaser 
where  the  validity  of  the  vendor's  title  depends  upon  a  doubt- 
ful question  of  law,  where  others  having  rights  dependent 


13  Sherman  v.  Kane,  86  N.  Y.  57 
Ford  V.  "Wilson,  35  Miss.  504 
Grant  v.  Fowler.  39  N.  H.  104 
Schall  V.  R.  R.  Co.  35  Pa.  St.  191 


i-iBensel  v.  Gray,  80  N.  Y.  517 
Jeffries  v.  Jeffries,  117  Mass.  184 
Ludlow  V.  O'Niel,  29  Ohio  St.  182 
Morrison  v.  Kinstra,  55  Miss.  76 


Hodges  V.  Eddy,  41  Vt.  485;    Sim-  Powell    v.    Conant,    33    Mich.   396 

son     v.     Eckstein,     22     Cal.     580;  Vreeland  v.  Blauvelt,  23  N.  J.  Eq. 

Walker  v.  Ray,  111   111.  315;    De-  483. 

Long  v.  Mulcher,  47  Iowa,  44;  Du-  t--'  It  seems  that  a  rational  doubt 
pont  V.  Starring,  42  Mich.  492.  may  be  said  to  exist  when  a  court 
Thus,  specific  performance  of  an  of  law  would  not  feel  called  upon 
agreement  to  buy  land  will  be  en-  to  instruct  a  jury  to  find  that  the 
forced  where  the  title  is  based  on  fact  existed  on  the  existence  of 
adverse  possession  and  payment  of  which  vendor's  title  depends.  Em- 
taxes  for  nearly  sixty  years,  there  ery  v.  Grocock,  6  Madd.  (Eng.  Ch.) 
being  no  outstanding  minorities  54;  and  see  Moore  v.  Williams,  115 
which  could  be  set  up  in  support  N.  Y.  586;  Gregory  v.  Christian,  42 
of   the  paper   title   against  which  Minn.  304. 

the   adverse   possession   was   held.        ic  Shriver  v.   Shriver,   86   N.   Y. 

Ottinger   v.    Strasburger,    33    Hun  575. 
(N.  Y.),  466. 


ODJECTlONS    TO    TITLE.  363 

lijioii  Ihc  same  (incstioii  arc  not  jjai'tics  to  tlic  action.'^  On  the 
((thci-  liand,  an  objcdion  rannot  be  fonndctl  on  nnsnl)stantial 
ti'itles;'*'  and  a  bare  possibility  that  the  title  may  be  alTected 
by  the  cxislin^  cansi'S  wliicli  may  snbscqnontly  ]»(*  devchjix-d, 
wlicn  the  liiuhcsl  evidence  of  which  tlie  case  admits,  amonnt- 
in^'  to  a  moral  cerlainly,  is  ^iven  that  no  such  cause  exists, 
is  not  to  be  i'e;;arded  as  a  snlticieut  <^n"onnd  for  a  refusal  to 
perform  the  conti'acl.^'* 

So,  too,  while  the  rule  is  general,  that  a  disputable  fact  not 
determined  by  the  jud<;nient  in  the  action  is  a  bar  to  the 
enforcement  of  the  sale,  sncli  rule  cannot  be  said  to  be  abso- 
lute. In  its  application  a  discretion  is,  to  some  extent,  vested 
in  the  court;  and  if  the  existence  of  the  alleged  fact  which 
is  supposed  to  cloud  the  title  is  a  possibility  merely,  or  the 
alleged  outstanding  right  is  a  very  improbable  and  remote 
contingency,  which,  according  to  ordinary  experience  has  no 
probable  basis,  it  seems  a  court  may  compel  a  purchaser  to 
complete  the  purchase.20 

Neither  can  a  party  rely  upon  professional  advice  he  may 
have  received  with  respect  to  the  title,  and,  hence,  an  opinion 
of  counsel  of  admitted  standing  and  ability,  that  the  title  to 
the  land  in  questicm  is  defective  or  doubtful,  will  not  justify 
a  purchaser  in  receding  from  the  contract,  when  the  title  is 
in  fact  perfect  and  a  conveyance  is  tendered.-^ 

One  bound  by  an  executory  contract  to  purchase  land  need 
not  fultill  his  contract  if  there  is  a  cloud  on  the  title.  The 
defect  need  not  consist  of  an  outstanding  title  wliich  is  neces- 
sarily paramount;--  it  is  suflficient  if  it  creates  a  doubt,-^  or 
raises  a  (juestion  wliich  can  only  be  settled  by  litigation.-^ 
Nor  need  such  a  title  be  positively  invalid;  it  is  enougli  that 
it  is  subject  to  so  much  doubt  that  a  purchaser  ought  not  to 
be  compelled  to  accept  it.-'"'    It  may  still  be  a  valid  title  though. 

17  Abbott  V.  James.  Ill  N.  Y.  673.  22  Estell  v.  Cole,  62  Tex.  695. 

i«  Webb    V.    Chisholm,    24    S.    C.  -'.-i  Jeffries  v.   Jeffries,   117   Mass. 

487.  184;    Gill    v.    Wells.    59    Md.    492; 

I'J  Moser  v.  Cochrane.  107  N.  Y.  Powell  v.  Conant.  33  Mich.  396. 

35.  2<  Butts  V.   Andrews,   136   Mass. 

-"Ferry  v.   Sampson.   112  N.   Y.  221;  Charleston  v.  Blohme,  15  S.  C. 

415.  124. 

21  Montgomery  v.   Land  Bureau,  -■'  Richmond    v.    Gray,    3    Allen 

94  Cal.  284.  (Mass.),  25. 


564  OBJECTIONS    TO    TITLEJ. 

charged  with  incumbrance 5^6  but  where  the  agreement  doeS 
not  mention  the  title  to  be  given,  an  imi)lication  arises  that 
it  is  to  be  free  from  incumbrances;-'^  nor  will  the  purchaser 
be  bound  to  take  it  subject  to  easements.-*^ 

A  marketable  title  should  carry  with  it  an  assurance  of 
security  in  the  possession  and  enjoyment  of  the  land;^^  and 
hence  it  follows  that  a  purchaser  should  not  be  required  to 
comi)lete  his  bargain  where  there  is  a  reasonable  chance  for 
any  person  to  lawfully  raise  a  question  against  the  title.  It 
is  immaterial  that  the  danger  to  the  purchaser  to  all  seeming 
is  very  slight  and  very  remote;  it  is  enough  that  it  exists,  and 
that  while  it  exists  as  a  matter  of  law  as  well  as  of  fact  it  may 
operate  to  the  i^urchaser's  detriment.  It  would  seem,  there- 
fore, that  however  strong  the  probability  may  be  that  the 
objectionable  matter  will  never  be  asserted  against  the  estate, 
yet  as  long  as  it  amounts  to  no  more  than  a  probability  the 
title  cannot  in  any  just  sense  be  said  to  be  marketable.  It 
is  true  that  a  title  free  from  reasonable  doubt  may  be  forced 
upon  an  unwilling  purchaser;  but  this  is  only  where  there  ia 
a  doubt  as  to  whether  there  exists,  in  law  or  in  fact,  any  defect 
in  the  title.  When  it  is  ascertainable  that  there  is  an  existing 
defect,  the  purchaser  will  not  be  compelled  to  perform  merely 
because  it  is  doubtful  whether  the  defect  will  ever  incommode 
him.3o 

§  300.  "Satisfactory"  title.  It  is  by  no  means  an  unusual 
practice  for  parties  to  stipulate  in  their  agreements  of  sale  for 
the  production  of  a  "satisfactory"  title,  or  a  title  "satisfac- 
tory'' to  the  vendee,  or  to  the  vendee's  attorneys;  and  even 
where  no  mention  of  this  kind  is  made  in  speaking  of  the  title 
to  be  produced,  yet  where  provision  is  made  for  the  return  or 
forfeiture  of  the  deposit  it  is  usual  to  stipulate  that  if  the 
title,  upon  examination,  should  prove  "unsatisfactory,"  the 
agreement  shall  be  canceled.  It  is  difficult  to  announce  the 
exact  efifeet  of  stipulations  of  this  kind,  or  to  state  whether 

26  Coal  V.  Higgins,  23  N.  J.  Eq.  20  Barnard  v.  Brown,  112  Mich. 

308.  452. 

2T  Newark  Saving  Institution  v.  so  Moore   v.   Appleby,   108   N.   Y. 

Jones,   37   N.  J.  Eq.   449;    Delevan  237;     Brooklyn     Park     Com'rs    v. 

V.  Duncan,  49  N.  Y.  485.  Armstrong,  45  N.  Y.  234.    Compare 

28  Wheeler    v.    Tracy,    49    N.    Y.  Ferry  v.  Sampson,  112  N.  Y.  415. 
Sup.  Ct.  208. 


OBJECTIONS    TO    TITLE.  365 

the  ]»(>vv('r  of  jtronouiicinji  his  (lissatisr;uti(»ii  is  subject  to  an 
arbitrary  exercise  by  tlie  party  in  whose  favor  it  is  extended, 
or  exists  only  where  in  reason  and  j^ood  conscience  he  may  be 
dissatistied.  The  autliorilies  upon  tliis  point  are  contlictiu}^, 
and  tlie  (pieslion  may  fairly  be  said  to  be  one  of  doubt. 

In  a  majoiily  of  the  most  pronounced  cases  llie  (piestion 
Las  arisen  in  connection  witli  sah'S  of  chattels  or  the  fabrica- 
tion of  aiticles  of  a  j)ersonal  nature  largely  dependent  upon 
sl;ill  an<l  altiliiy.  In  one  (lass  of  cases  it  is  held  that  the 
person  to  whom  this  privilege  is  j^iven  has  no  ri;^dit  to  say, 
arbitrarily  and  without  cause,  that  he  is  dissatistied,"^'  while 
the  other  class  as  positively  asserts  the  doctrine  that  when 
the  aj;reemenl  is  to  make  and  furnish  an  aftide  to  the  satis- 
faction of  the  jx'rson  for  whom  it  is  intended,  he  alone  is  the 
judge  as  to  whether  the  article  is  satisfactory;  and  tliat  it 
is  not  a  comitliance  with  the  contract  to  prove  that  he  ouj^ht 
to  have  been  satislied/^-  In  nearly  all  of  these  cases  it  is  said 
that  where  the  refusal  to  accept  is  because  of  dissatisfaction 
the  ol»jecti()n  should  be  made  in  ^ijood  faith;  yet  this  is  a  very 
dillicult  matter  to  determine  where  the  sole  arbiter  is  the 
objecting  party  himself,  for  he  may  refuse  through  the  merest 
caprice,  and  yet  not  be  chargeable  with  bad  faith. 

There  is  no  reason  of  public  policy  which  prevents  parties 
from  contracting  that  the  decision  of  one  or  the  other  shall  be 
conclusive;  and  the  weight  of  authority,  as  well  as  reason, 
would  seem  to  support  the  doctrine  that  parties  must  abide 
by  their  contracts  as  they  have  made  them.  If  the  vendor 
has  agreed  to  furnish  an  article  that  shall  be  satisfactory  to 
the  vendee,  it  would  seem  that  he  constitutes  the  latter  the 
sole  judge  of  his  own  satisfaction.  Some  cases  announce  a 
reasonable  modification  of  the  rule,  to  the  effect  that  the 
dissatisfaction  must  be  real  and  not  feigned,  and  that  the 
vendee  is  not  at  liberty  to  say  he  is  dissatistied  when  in  reality 
he  is  not — in  other  words,  that  his  discontent  must  be  genu- 
ine ;^3  yet  the  ditliculty  of  arriving  at  mental  processes  is  so 
great  that  the  modification  as  suggested  is  practically  of  little 

31  See  Daggett  v.  Johnson.  49  Vt.  McCarren     v.     McNulty,     7     Gray 

345;   Manufacturing  Co.  v.  Brush,  (Mass.),   139;    Gibson  v.  Cranage, 

43  Vt.  528.  39  Mich.  49. 

••■•■iZaleski  V.  Claris,  44  Conn.  218;  :'' See     Hartford     Mfg.     Co.     T. 

Brown   v.   Foster,   113   Mass.   136;  Brush,  43  Vt.  528. 


3G6  OBJECTIONS   TO   TITLE. 

avail;  and  even  the  eame  class  of  cases  which  hold  this  doC-' 
trine  also  maintain  that,  while  the  vendee  is  hound  to  act 
honestly,  it  is  not  enouj^h  to  show  that  he  ought  to  have  been 
satisfied  and  that  his  discontent  was  without  good  reason.^-* 

It  may  be  said  that,  where  the  agreement  simply  is  to 
produce  something  that  shall  be  "satisfactory,"  without  indi- 
cating the  person  to  whom  it  shall  be  satisfactory,  the  stipu- 
lation is  doubtful,  or  that  it  should  be  satisfactory  to  any 
reasonable  person.  But  this  would  be  doing  violence  to 
language;  for,  as  has  been  well  remarked,  ''when  we  speak  of 
making  a  thing  satisfactory,  we  mean  it  shall  be  satisfactory 
to  the  person  to  whom  we  furnish  it.  It  would  be  nonsense 
to  say  that  it  should  be  satisfactory  to  the  vendor.  It  would 
be  indefinite  to  say  it  should  be  satisfactory  to  a  third  person 
w'ithout  designating  the  person.  It  can  only  be  intended  that 
it  shall  be  satisfactory  to  the  person  who  is  himself  interested 
in  its  satisfactory  operation,  and  that  is  the  vendee."^'^  And 
this  is  the  view  generally  taken.^^ 

It  has  been  suggested  that  the  force  of  the  cases  last  men- 
tioned may  be  lessened  by  the  fact  that  questions  relative  to 
the  title  to  land  are  such  as  are  peculiarly  within  the  power 
and  duty  of  a  court  to  detennine.^'^  Yet  in  principle  it  can 
make  but  little  difference  whether  the  transaction  relates  to 
real  or  personal  property;  and  so,  where  the  terms  of  sale 
provided  that  if  the  purchaser,  upon  examination,  should  not 
be  satisfied  with  the  title,  he  need  not  take  the  property,  it 
was  held  that  if  the  purchaser  in  good  faith  was  not  satisfied 
with  the  title,  he  would  not  be  compelled  to  complete  the 
purchase,  notwithstanding  the  court  pronounced  the  title 
marketable.^** 

An  apparently  opposing  case  will  be  found  among  the  earlier 
decisions  in  New  York,^^  w^here  a  contract  for  the  purchase  of 
land  provided  that  the  purchaser  should  pay  for  the  same 

34Daggettv.  Johnson,  49  Vt.  345;  3  7  Note  by  Savage,  25  Am.  Law 

Lynn  v.  R'y  Co.  60  Md.  404.  Reg.  19. 

3s  Brown,  J.,  in  Campbell  Press  3s  Averett  v.   Lipscombe,   76  Va. 

Co.  V.  Thorp,  1  Law  Rep.   (Mich.)  404;  Taylor  v.  Williams,  45  Mo.  80. 

645.  30  Folliard  v.   Wallace,   2   Johns. 

3cMcCormick    Co.    v.    Chesroun,  (N.  Y.)  395. 
33   Minn.  32;    Singerly  v.  Thayer, 
108  Pa.  St.  291. 


OBJECTIONS    TO    TITLE.  307 

three  montliH  after  he  shouhl  be  well  satisfied  thai  llif  lith- 
was  iiiarkclablc.  Paviiient  was  refused  on  the  ground  of  oul- 
slaiidin^'  title,  aiul  the  imi'chaser  alh'<,'ed  dissatisfaction.  The 
])r<)()f  showed  that  the  elaim  of  outstanding;  title  was  unsound. 
Kent,  ('.  .1.,  after  demonstrating  the  untenability  of  defend- 
ant's objection  for  this  reason,  then  said:  "Nor  will  it  d(.  for 
the  defendant  to  say  he  was  not  satistied  with  his  title  with- 
out showiu}:,  some  lawful  incinubrance  or  claim  existing 
a;;ainst  it.  A  simjtle  allegation  of  dissatisfaction,  without 
some  jijood  reason  assigned  for  it,  mi.i;ht  be  a  mere  ])retext, 
and  cannot  be  re^^arded.  If  the  defendant  Were  left  at  liberty 
to  jud;j;e  for  himself  when  he  was  satisfied,  it  would  totally 
destroy  the  obligation,  and  the  agreement  would  be  absolutely 
void;"  and  at  the  same  time  laid  down  a  principle  whicli  the 
courts  of  New  York  have  since  followed  on  a  num])er  of 
occasions,  to  wit:  "That  which  the  law  shall  say  a  contracting 
party  ought,  in  reason,  to  be  satistied  with,  that  the  law  will 
say  he  is  satistied  with."^** 

§  301.  "Good"  title.  It  has  been  said  that  custom  makes 
law.  To  a  certain  extent  this  is  true,  but  the  employment  of 
meaningless  phrases,  however  widespread  or  long  continued, 
should  not  be  made  to  come  within  the  rule.  Analogous  to 
the  topic  discussed  in  the  last  paragraph  is  the  frequent  stipu 
lation  for  the  production  of  a  "good"  title,  or  that  title  may 
be  refused  if  on  examination  it  shall  "not  be  found  good." 
The  word  "good,"  in  this  connection,  notwithstanding  its  long 
and  freciuent  use,  has  no  meaning  either  at  law  or  in  equity. 
Its  very  employment  necessarily  implies  the  existence  of  such 
a  thing  as  a  "bad"  title,  and  by  the  rules  of  grammar  indicates 
that  it  may  be  "better."  But  the  term  has  come  into  common 
use  and  probably  will  continue  to  find  expression  in  land  con- 
tracts, and  the  question  for  solution  is:  When  will  a  purchaser 
be  justified  in  refusing  to  accept  a  conveyance  under  a  con- 
tract to  produce  a  "good"  title?  Undoubtedly  what  is  meant 
by  the  parties  is  a  marketable  title,  and  the  signiticalion  of  the 
term,  when  employed  in  a  contract  of  sale,  may  fairly  be  said 

•<^  The    principle    is    affirmed    in    but  not  with  reference  to  the  sub- 
Brooklyn  V.  R.  R.  Co.  47  N.  Y.  475;     ject  under  discussion. 
Miesell  v.   Ins.   Co.  76   N.   Y.   115, 


368  OBJECTIONS    TO    TITLE. 

to  be  equivalent  to  a  marketable  title — one  free  from  doubt 
or  palpable  defects.^^ 

§  302.  Title  as  aifected  by  attorney's  opinion.  As  a  general 
rule  an  opinion  of  counsel  pronouucinj;-  a  prolTered  title  doubt- 
ful or  defective  will  not  justify  a  purchaser  in  rejecting  sanie,^- 
nor  will  the  fact  that  the  contract  provides  that  title  shall 
first  be  passed  upon  by  the  purchaser's  lawyer  vary  the  appli- 
cation of  the  rule  or  make  the  decision  of  such  lawyer  a  con- 
dition precedent  to  the  right  of  enforcement  by  the  vendor.^^ 
But  if  the  parties  expressly  stipulate,  as  they  have  a  right  to 
do,  that  the  title  shall  first  be  presented  to  the  purchaser's 
counsel  for  examination  and  that  upon  his  acceptance  only 
shall  the  sale  become  consummate,  a  rejection  by  him  will 
justify  the  purchaser  in  refusing  to  proceed,  and  he  may 
demand  back  and  recover  any  earnest  money  that  may  have 
been  paid.^^ 

§  303.  Claims  of  title.  While  in  strict  legal  contemplation 
all  that  a  land-owner  agrees  to  sell,  or  actually  does  sell,  is 
his  specific  degree  of  interest  in  a  parcel  of  land,  yet,  for 
commercial  convenience,  there  is  a  recognized  distinction 
between  an  agreement  for  the  conveyance  of  a  specific  tract 
of  land  and  an  agreement  to  simply  convey  the  vendor's  right, 
title  and  claim  thereto.  Imperfect  titles,  claims  of  title,  con- 
flicting and  unconsummate  equities,  always  abound  in  profu- 
sion in  every  locality  where  land  exhibits  any  considerable 
degree  of  activity;  and  such  claims  and  equities  are  often 
made  the  subject  of  sale  and  conveyance.  When,  therefore, 
a  vendor  has  bound  himself  to  convey  not  the  land  but  only 
his  right,  title  and  claim  to  the  land,  there  is  no  implication 
of  a  covenant  that  he  has  a  marketable  title;  nor  can  the 
vendee  refuse  to  consummate  the  agreement  by  raising  an 
objection  to  the  title  offered.  If  the  vendor  offers  to  convey 
all  his  claim,  whatever  it  may  be,  he  tenders  to  the  vendee 

41  See    Herman    v.    Somers.    158  lation  in  regard  to  title  but  simply 

Pa.  St.  424.  that   it   was   to    be   examined   and 

■i-  Montgomery  v.  Land  Bureau,  accepted  or  rejected  by  purchaser's 

94  Cal.  284.  attorney,    hence    the    question    of 

■»3  Vought  v.  Williams,  120  N.  Y.  marketable  or  non-marketable  title 

253.  was  not   presented,   but  it  would 

«■»  Allen  V.  Pockwitz,  103  Cal.  85.  seem  that  even  had  it  been  men- 

In  this  case  there   was  no  stipu-  tioned    in    the    contract   it    would 


OBJECTIONS    TO    TITLE.  369 

the  very  .subject-matter  of  the  contract;  the  vendee  in  Kuch 
case  buys  at  his  own  risk,  and  cannot  be  heard  to  defend,  when 
caUed  on  for  tlie  price,  that  tlie  tith*  offered  is  defective.'*'' 
So,  also,  if  a  vendor  does  not  pretend  to  have  a  clear  title,  but 
expressly  sells  such  as  he  has,  the  vendee  will  be  obliged  to 
accept  tlie  same  without  tirst  requiring  the  vendor  to  show 
u  clear  title.^« 

j5  304.  Title  of  record.  The  question  seems  to  have  been 
I)roductive  of  much  discussion  as  to  whether  a  purchaser  who 
has  contracted  for  a  record  title  will  be  compelled  to  accept  a 
title  depending  upon  adverse  possession  under  the  statute  of 
limitations.  Of  all  known  titles  to  land,  beyond  a  mere  naked 
possession,  which  are  prima  facie  marketable,  there  is  perhaps 
none  recognized  by  law  more  doubtful  and  uncertain  than 
those  dejK'uding  for  their  validity  upon  an  adverse  posses- 
sion.^7  For  this  reason  such  titles  are  justly  regarded  with 
suspicion  and  accepted  with  caution;  and  though  they  may 
be,  for  all  practical  purposes,  indefeasible  at  law  or  in  equity 
and  as  strong  as  a  title  by  grant,  yet,  where  the  contract  calls 
for  a  title  shown  by  the  records,  an  objection  to  a  title  based 
upon  extraneous  facts  and  resting  in  parol  is  well  taken.  The 
fact  that  the  proposed  title  is  practically  unassailable  carries 
no  weight  in  the  consideration  of  a  question  of  this  char- 
acter.^8  n  [^  suflBcient  that  such  title  is  substantially  different 
from  the  one  contracted  for,  and  the  motives  and  fancies  of 
mankind  are  so  various  that  the  law  which  recognizes  the 
right  of  parties  to  make  just  such  contracts  as  they  choose 

have  made  little  or  no  difference  It  has  been   held  that  where   the 

for  this  will,  as  a  rule,  be  implied  vendor   agrees    to    make    a    "good 

in  all  contracts.  and  sufficient  conveyance,  with  full 

46  So  held  where  the  contract  warranty"  only  against  his  heirs 
was  that  the  vendor,  in  consid-  and  personal  representatives,  he  is 
eration  of  a  stated  price,  agreed  to  bound  only  to  convey  such  title 
convey  all  his  "right,  title  and  as  he  has;  but  that  the  rule  would 
claim"  in  a  certain  tract  contain-  be  otherwise  where  his  agreement 
ing  five  hundred  acres,  which  price  is  for  a  good  and  sufficient  con- 
vendee  agreed  to  pay,  and  after-  veyance.  Thompson  v.  Hawley,  14 
wards  the  vendor  tendered  a  deed  Ore.  199. 

purporting     to     convey     "all     his        *'  Brown    v.    Cannon.    5    Gilm. 

right,  title  and  claim."    Herrold  v.  (111.)  182. 
Blackburn,  56  Pa.  St.  103.  ■««  Noyes   v.    Johnson.    139    Ma^s. 

4'!  Broyles  v.  Bee,  18  W.  Va.  514.  436. 

24 


370  OBJECTIONS    TO    TITLE. 

will  not  call  upon  a  man  who  has  contracted  to  purchase  one 
thing  to  explain  why  he  refuses  to  accept  another.^"  To  compel 
a  j)urc]iaser  to  taki^  that  which  he  never  agreed  to  accept 
would  be  manifestly  unjust,  no  matter  what  might  be  its 
character  or  value. 

It  is  of  frequent  occurrence,  in  those  states  where  title  is 
deraigned  from  the  federal  goverameut,  to  stipulate  for  an 
abstract  showing  a  devolution  of  title  from  the  United  States 
to  the  person  proposing  the  same.  In  the  later-formed  states 
this  is  ])articularly  the  case.  Tlie  same  general  principles  we 
have  just  been  considering  apply  with  equal  force  to  stipula- 
tions of  this  character.  As  where  the  vendor  agreed  **to  show 
and  present  a  perfect  chain  of  title  to  said  property  from  the 
United  States  government,"  and  did  present  an  abstract  show- 
ing a  government  patent  with  successive  conveyances  connect- 
ing his  title,  yet  it  appearing  further  that  the  land  covered  by 
said  patent  had  been  previously  confirmed  in  the  heirs  of  a 
deceased  person  by  deed  of  confirmation  of  the  territorial 
governor,  pursuant  to  act  of  congress,  and  that  in  consequence 
the  United  States  possessed  no  interest  in  the  land  which  it 
could  sell  or  patent,  it  w^as  held  that  the  patent  was  void  as  a 
conveyance  and  colorable  only;  and  that,  notwithstanding 
that  such  patent  might  be  resorted  to  in  connection  with  pay- 
ment of  taxes,  possession,  etc.,  as  color  of  title,  it  did  not  show 
the  title  intended  by  the  language  of  the  parties.  That  the  title 
thus  shown  was  a  good  defensive  title  was  not  denied;  but  the 
court  ruled  that  the  only  rational  construction  that  could  be 
placed  upon  the  stipulation  of  the  agreement  required  the 
production  of  a  chain  of  title  from  the  United  States  govern- 
ment W'hich  should  be  perfect,  and  that  this  could  only  mean 
the  production  of  the  successive  conveyances,  commencing 
with  the  government  patent,  each  being  a  perfect  conveyance 
of  the  title,  down  to  and  including  the  person  proposing  the 
same.  To  have  complied  with  the  stipulation  it  would  have 
been  necessary  to  have  shown  a  title  derived  through  the  heirs 
of  said  deceased  person;  but  the  claim  being  bas(Ml  uj)on  the 
invalid  patent,  which  was  simply  a  link  in  a  colorable  chain 
of  title,  was  not  what  the  purchaser  had  bargained  for.^'O 

40  Page  V.  Greeley.  75  111.  400.         conveyance  and  upon  the  abstract, 
50  Payne  v.  Markle,  89  111.  66.    In    but  the  principle  applies  to  an  ex- 
this  case  the  questions  arose  after    ecutory  contract  as  well. 


OBJECTIONS    TO    TITLE.  371 

?;  306.  Title  by  adverse  possession  and  limitation.  A  title 
dcdiuihlc  of  record,  must,  under  o\ir  luws,  be  more  reliable 
and  conseciuently  more  desirable  than  one  depending  u^iou  a 
variety  of  extrinsic  circumstances  to  be  established  by  parol 
evidence.  This  is  a  p;enerally  i'eco<;nized  principle  in  all  real 
estate  ti-ansactious;  and  intending  purchasers  are  usually 
tenacious  upon  this  point,  and  observant  to  see  that  the  stipu- 
lations of  the  contract  embody  ju'ovisions  callinj;  for  the  ]»ro- 
duction  of  such  title.  Indeed,  this  is  one  of  the  vital  points 
of  the  contract,  and  a  purchaser  who  desires  such  a  title 
should  have  that  fact  duly  incorporated.'''^  But  where  the 
purchaser  does  not  see  tit  to  stipulate  as  to  the  character  of 
the  title  he  is  to  receive,  or  if  no  reference  is  made  thereto, 
while  the  obli;i;ation  of  the  vendor  to  furnish  a  marketable 
title  would  be  raised  by  implication,  there  would  be  no  obli- 
gation on  his  part  to  furnish  a  record  title. 

A  purchaser  may  be  compelled  to  take  a  title  founded  on 
adverse  possession  under  color  of  title,  if  there  is  no  reason- 
able doubt  of  the  superiority  of  such  title,^^  ^j^t  not  where 
there  are  circumstances  which  may  prevent  the  possession 
from  being  adverse.''-*  Nor  does  it  seem  to  be  essential  that 
the  adverse  title  should  be  based  upon  color  of  title  ;^^  it  is 
sufficient  if  it  is  of  such  a  character  as  shall  assure  to  the 
vendee  a  quiet  and  peaceable  possession  of  the  property.^^ 

f'l  A  purchaser  entitled  under  his  which  could  be  set  up  in  support 

contract  to  a  title  of  record  is  not  of   the   paper  title   against   which 

bound  to  accept  a  title  by  adverse  the   adverse   possession   was   held, 

possession  depending  upon  a  long  Ottinger   v.    Strasburger,    33    Hun 

and  difficult  investigation  of  facts,  (N.  Y. ),  466.     And  see  Murray  v. 

although  it  may  be  good.    Noyes  v.  Harway,  56   N.   Y.  337;    Ballou  v. 

Johnson,  139  Mass.  436.  Sherwood,  32   Neb.  666;    Moore  v. 

"Crowell  V.  Druley,  19  111.  App.  Luce.   29   Pa.   St.   260;    Clancey  v. 

509.     A   purchaser    may    be    com-  Houdlette,  39   Me.  451;    Luman  v. 

pelled  to  accept  a  title  founded  on  Hubner.  75  Md.  268. 

an   adverse   possession   for  ninety  s!  Shriver  v.    Shriver,   86   N.   Y. 

years.    Abrams  v.  Rhoner,  44  Hun  575. 

(N.  Y.),  507;    Shriver  v.  Shriver,  54  Campau  v.  Lafferty,  50  Mich. 

86  N.  Y.  575.    Specific  performance  114. 

will   be   enforced    where   the   title  '••'•Barnard   v.   Brown,  112  Mich, 

tendered   is   based   on   an   adverse  452;   O'Connor  v.  Huggins,  113  N. 

possession   and   payment  of  taxes  Y.  521;   Bicknell  v.  Comstock,  113 

for   nearly   sixty   years,   there  be-  U.  S.  149;   Hodges  v.  Eddy,  41  Vt. 

ing     no     outstanding     minorities  485. 


372  OBJECTIONS    TO    TITLE. 

§  307.  Ancestral  titles — Descent.  Title  by  descent  was  form- 
erly considered  the  superior  title,  and  under  the  peculiar 
conditions  which  attended  the  devolution  from  ancestor  to 
heir  was  probably  more  certain  and  indefeasible  than  that 
acquired  by  any  of  the  modes  of  purchase  except  the  original 
grant  from  the  sovereign.  But  in  the  United  States  this  order 
has  been  reversed;  and  while  a  title  so  derived  is  in  every 
way  as  effectual  as  one  obtained  by  purchase,  it  is  often 
attended  with  so  many  doubtful  incidents  that  such  titles  are 
now  frequently  regarded  with  suspicion  and  accepted  only 
with  caution. 

Where  propc^r  proof  of  heirship  is  made,  and  particularly 
where  an  adjudication  has  been  had  in  probate,  and  it  satis- 
factorily appears  that  the  title  of  the  heir  is  unembarrassed 
by  ancestral  debts  or  unfulfilled  obligations,  no  serious  objec- 
tion will  usually  lie;  but  in  the  absence  of  any  proper  showing 
a  purchaser  is  justified  in  refusing  the  title  unless  by  some 
agreement  the  defect  of  proof  has  been  waived.  An  objection 
is  well  taken  where  there  is  at  least  a  probability  that  certain 
persons  whose  deed  is  tendered  to  make  a  title  are  not  the 
sole  and  only  heirs  of  their  ancestor,  and  a  purchaser  will  not 
be  required  to  accept  a  title  so  doubtful.^^' 

§  308.  Spurious  deeds.  A  purchaser  has  a  right  to  demand 
a  valid  title  by  a  regular  derivation  of  right  from  some 
undoubted  and  unquestioned  source;  and  where  the  title  as 
exhibited  depends  upon  spurious  deeds  or  other  muniments 
whose  genuineness  and  authenticity  is  questioned,  the  pur- 
chaser may  well  object  to  a  consummation  of  the  trade  until 
by  proper  proof  the  objection  is  shown  to  be  untenable.  An 
ancient  deed  will  usually  be  received  without  proof  of  execu- 
tion when  free  from  suspicion  upon  its  face,  and  when  offered 
to  support  a  title  concurrent  with  possession;  but  where  a 
deed  is  without  acknowledgment  or  other  proof,  or  is 
impeached  by  other  and  extraneous  testimony,  unless  the 
possession  of  the  claimant  thereunder  has  been  of  such  a 
character  and  continued  for  such  length  of  time  as  to  create 
a  valid  title  by  mere  force  of  adverse  possession,  the  title  so 
offered  is  so  far  uncertain  that  a  court  of  equity  would  refuse 
to  lend  its  aid  to  enforce  the  contract,  while  the  questions 

-'•-Walton  V.  Meeks,  41  Hun   (N.    Y.),  311, 


OBJECTIONS    TO    TITLE. 


373 


thus  laiscd  being  essentially  (jiiestions  of  fad  .sliould  he  sub- 
mitted (<)  a  jury  foi'  dclcruiination/'^ 

§309.  Hazard  of  litigation.  A  purcluiser  will  never  be 
compelled  in  i-iiuily  to  actepl  a  title  thai  will  expose  him  to 
the  haiiard  of  litigation.  The  title  should  not  only  be  sufficient 
to  enable  him  to  hold  the  land,  but  to  hold  it  in  peace;  and 
where  the  circumstances  attending  the  devolution  of  title  are 
such  as  to  cast  a  doubt  upon  its  character,  an  objection  for 
this  reason  is  well  founded.'''^  A  purchaser  in  every  sale, 
unless  he  specially  stii)ulates  to  the  contrary,  has  a  right  to 
expect  that  he  will  acquire  a  valid  and  unassailable  title,  and 
the  law  presumes  that  he  purchases  with  that  object  in  view, 
lie  should  not,  therefore,  be  left  uiJon  receiving  his  deed  to 
the  uncertainty  of  a  doubtful  title  or  the  hazard  of  a  contest 
with  other  parties,  which  may  seriously  affect  the  value  of  the 
property  if  he  desires  to  sell  the  same.^^ 

But  while  the  foregoing  propositions  have  become  estab- 
lished beyond  disitute,  it  must  nevertheless  appear  that  the 
6bjection   is  not   founded  on  mere  caprice  or  unsubstantial 


•"'7  See  Seymour  v.  De  Lancey, 
Hop.  Ch.    (N.  Y.)    436. 

"•«  Moore  v.  Appleby,  108  N.  Y. 
237;  Swaney  v.  Lyon,  67  Pa.  St. 
436;  Herman  v.  Somers,  158  Pa. 
St.  424.  Tillotson  v.  Gesner,  33  N. 
J.  Eq.  313.  This  was  a  bill  for  spe- 
cific performance.  The  complain- 
ant and  defendant  had  agreed  to 
exchange  lands.  It  was  objected, 
inter  alia,  that  complainant  held 
her  title  from  her  son-in-law  by  a 
voluntary  conveyance  made  to  de- 
fraud his  creditors  and  voidable 
by  them;  that  a  judgment  for  de- 
ficiency was  docketed  against  him 
a  few  days  before  the  conveyance 
from  him  to  complainant  was 
made;  that  the  title  was  assailable 
by  his  creditors.  Held,  where  there 
is  a  conveyance  of  land,  volun- 
tary on  its  face,  made  by  a  de- 
fendant just  before  a  judgment  for 
a  large  sum  is  rendered  against 
him,  which  would  be  a  lien  on  the 


land  if  such  conveyance  had  not 
been  made,  and  the  evidence  fails 
to  show  by  strong  proof  that  it 
was  made  in  good  faith  and  for  a 
valuable  consideration,  the  specific 
performance  of  an  agreement  with 
the  vendee  for  the  purchase  of  the 
land  will  not  be  enforced. 

-ii*  Jordan  v.  Poillon,  77  N.  Y. 
518;  Moore  v.  Williams,  115  N.  Y. 
586;  Herman  v.  Somers.  158  Pa. 
St.  424.  A  purchaser  of  real  estate 
cannot  be  required  to  accept  a  con- 
veyance thereof  where,  because  of 
a  mistake  in  the  description  of  the 
land  in  a  former  conveyance 
through  which  the  vendor  holds, 
the  title  as  to  a  part  of  the  land 
is  so  doubtful  that  it  may  exposs 
the  vendee  to  litigation  on  the  part 
of  a  third  person,  or  where  for 
such  reason  the  title  is  not  market- 
able. Smith  v.  Turner.  50  Ind. 
367;  Linn  v.  McLean,  80  Ala.  360. 
A  purchaser  is  justified  in  refus- 


374  •  OBJECTIONS    TO    TITLE. 

trifles ;^o  hence  a  bare  possibility  that  the  title  may  be  affected 
by  the  existing  causes  which  may  subsequently  be  developed 
when  the  highest  evidence  of  which  the  case  admits,  amount- 
ing to  a  moral  certainty,  is  given  that  no  such  cause  exists, 
is  not  to  be  regarded  as  a  suthcient  ground  upon  which  to 
found  an  objection,  or  for  inducing  a  court  to  decline  to 
compel  a  purchaser  to  perform  his  contract.^^ 

It  is  further  to  be  observed  that  the  doctrine  that  equity 
will  not  compel  a  party  to  accept  a  title  which  may  be  exposed 
to  litigation  does  not  apply  when  no  question  of  fact  is 
involved,  and  all  parties  in  interest  are  before  the  court.^^ 

§  310.  Pending  litigation.  If  a  purchaser  may  refuse  to 
consummate  a  sale  of  laud  where  it  reasonably  appears  that 
its  acquisition  may  subject  him  to  the  hazard  of  a  law^  suit, 
it  follows  with  much  stronger  reason  that  an  objection  will 
lie  where  the  title  to  the  property  forming  the  subject-matter 
of  the  sale  is  actually  involved  in  litigation,63  or  where  pro- 
ceedings of  a  legal  character  are  then  pending  to  subject  the 
property  to  any  liens,  servitudes  or  burdens.  Thus,  the  pen- 
dency of  condemnation  proceedings  is  such  a  defect  in  title 
that  the  vendee  is  not  bound  to  take  the  propert3'.*5^  And 
generally,  if  an  action  has  been  commenced  which  apparently 
affects  the  title,  and  the  pleadings  state  a  cause  of  action,  such 
a  title  is  not  marketable  and  the  purchaser  will  not  be  com- 
pelled to  accept  it.^^  And  it  seems,  that  where  such  a  con- 
ing to  take  a  title  founded  on  par-  after  his  personal  estate  was  ex- 
tition  proceedings  to  which  re-  hausted;  also  the  possibility  of  the 
mainder-men  were  not  made  par-  discovery  of  a  will  within  four 
ties.  Moore  v.  Appleby,  108  N.  Y.  years  after  death,  which  would 
237.  govern  the  disposition  and  render 

60  Webb  V.  Chisholm,  24  S.  C.  487.    a  conveyance  void.     Held,  that  to 

ci  As  where  purchaser  refused  to  entitle  plaintiff  to  relief  it  was  nec- 
consummate  a  sale  and  sued  for  essary  for  him  to  show  debts,  and 
the  recovery  of  money  paid  by  him  an  insufficient  personal  estate  left 
on  the  execution  of  the  contract  by  C.  Moser  v.  Cochrane,  107  N. 
on  the  ground  that  defendant  in-  Y.  35.  And  see  Webb  v.  Chisholm, 
herited  the  property  from  C,  who    24  S.  C.  487. 

died  within  three  years  intestate;        02  cheseman    v.    Cummings,    142 
that  the  administration  of  his  es-    Mass.  65. 

tate  had  not  been  closed  and  plain-       cs  Linn  v.  McLean,  80  Ala.  360. 
tiff  would  have  to  take  the  prop-        C4  Cavenaugh  v.  McLaughlin,  35 
erty   subject   to    the    debts   of   the    N.  W.  Rep.   (Minn.)    576. 
intestate,   if  there   should   be  any        65  Simon  v.  Vandeveer,  155  N.  Y. 


OBJECTIONS    TO    TITLE.  375 

(lilioii  is  diselu.st'd  thi'  puicliascr  iua;>  I'uiiiitl  his  objcctiuiiH 
wholly  upon  the  record.  He  is  not  required  to  go  outside  and 
investigate  the  evidence  upon  which  the  action  is  based  and 
then  determine  whether  it  can  be  maintained.  It  is  euou<;h 
that  action,  apparently  well  laid,  is  pendinj^."*' 

j5  311.  Unsatisfied  judgments.  if  an  examination  of  the 
title  <liscloses  the  fact  that  there  are  sulisistin^  judj^nients 
outstandinjj;  aj^aiust  the  vendor  which  constitute  liens  on  the 
land,  the  purchaser  may  properly  object  to  the  title  for  that 
reason,  and  may  successfully  defend  a  suit  for  specific  per- 
formance or  an  action  for  the  purchase  money.  Such  a  title 
is  clearly  defective. 

But  while  the  authorities  are  united  in  declarinij:  that  equity 
will  not  compel  a  vendee  to  take  an  imperfect  or  defective  title, 
yet  cases  of  hi<2;h  authority  are  to  be  found  in  which  a  pecuni- 
'ary  char<?e  aj?ainst  which  adequate  security  has  been  given 
has  been  held  not  to  constitute  a  defect  of  title.  Tlius,  where 
a  vendor  contracted  to  sell  a  house  and  lot,  the  fact  that  at 
the  date  of  the  contract  there  was  a  judgment  against  the 
vendor  from  which  he  had  entered  an  appeal,  and  given  bond 
with  ample  security  to  pay  the  amount  of  the  judgment,  with 
costs,  in  case  he  should  fail  to  prosecute  his  appeal  with  effect, 
was  held  not  to  constitute  a  defect  or  incumbrance  upon  the 
title  which  would  prevent  a  specific  execution  of  it.^'^ 

Usually,  however,  a  purchaser  of  land  who  is  entitled  under 
his  contract  to  a  perfect  title  cannot  be  compelled  to  perform 
his  agreement,  if  the  property  purchased  be  subject  to  judg- 
ment lien  under  which  he  is  obliged  to  take  the  risk  of  having 
the  same  afterward  resorted  to  for  the  pajinent  of  the  judg- 
ment, notwithstanding  that  a  supersedeas  bond  may  have 
been  given.  A  bond  may  be  ample  security  when  given  and 
yet  prove  worthless  at  the  end  of  a  protracted  litigation.  Nor 
will  the  fact  that  the  vendor  or  judgment  debtor  is  i)ossessed 
of  ample  property  which  may  first  be  exhausted  before  sub- 
jecting the  property  sold  be  a  suftici(Mit  answer  to  an  objection 
for  this  reason;  for,  while  such  may  be  the  general  rule,  yet 

377;    compare    Aldrich    v.    Bailey,  «"  Brewer  v.  Herbert,  30  Md.  301 ; 

132  N.  Y.  85.  Tiernan  v.  Roland,  15  Pa.  St.  441; 

CO  Simon  v.  Vandeveer,  155  N.  Y.  Thompson  v.  Carpenter,  4  Pa.  St. 

377.  132. 


3Y6  OBJECTIONS    TO    TITLE. 

it  may  not  be  certain  that  equity  would  couipel  the  judgment 
creditor  to  first  exhaust  the  property  remaining  in  the  judg- 
ment debtor  before  resorting  to  that  acquired  by  the  pur- 
chaser, and  in  any  event  he  should  not  be  required  to  assume 
either  the  risk  or  expense  of  prosecuting  an  action  to  compel 
the  judgment  creditor  to  seek  satisfaction  out  of  other  prop- 
erty of  the  judgment  debtor. 

An  objection  for  this  reason,  therefore,  must  usually  be  held 
to  be  well  taken;  and  such  objection  will  be  sustained  unless 
it  is  possible  to  protect  the  purchaser  against  the  hazard  of 
loss  or  inconvenience  by  decree  providing  for  the  application 
of  the  purchase  mohey  to  the  discharge  of  the  judgment,  or 
some  other  equally  effective  method.*^'' 

Where  the  judgment  is  very  old,  or  is  apparently  barred  by 
limitation,  the  foregoing  remarks  may  require  some  qualifi- 
catioTi,  for  lapse  of  time,  in  the  absence  of  repelling  evidence, 
is  sufficient  in  law,  without  more,  to  raise  a  presumption  of 
payment.*^''  Yet,  being  merely  a  presumption,  it  may  be 
rebutted,  and,  as  between  the  parties,  proof  of  intervening 
circumstances  is  frequently  permitted  to  show  that  the  debt 
is  still  due.  Usually,  how^ever,  the  statutes  of  limitation  are 
strictly  construed  in  favor  of  third  persons  for  the  purpose  of 
quieting  titles,  and  judgments  upon  which  no  attempt  has 
been  made  for  enforcement  for  a  period  of  twenty  years  will 
be  presumed  to  have  been  satisfied,  and  this  doctrine  prevails 
alike  at  law  and  in  equity. 

§  312.  Outstanding  incumbrances.  Incumbrances  have  been 
lucidly  yet  briefly  defined  as  any  rights  to  interests  in  land 
which  may  subsist  in  third  persons,  to  the  diminution  of  the 
value  of  the  land,  and  not  inconsistent  with  the  passing  of  the 
fee  of  same  by  deed.'^^ 

An  outstanding  incumbrance  of  any  kind,  for  which  no 
provision  has  been  made  in  the  contract  of  sale,  forms  an 
insuperable  objection  to  the  consummation  of  the  agreement. 
Thus,  the  existence  of  a  mortgage  upon  the  property  relieves 
the  vendee  from  the  obligation  of  performing  his  part  of  the 

68  Walsh  v.  Barton,  24  Ohio  St.  Olden    v.    Hubbard,    34    N.   J.   Eq. 

28.  85 ;  Ray  v.  Pearce.  84  N.  C.  485. 

CO  Rhodes  v.  Turner,  21  Ala.  210;  to  i  bou.  Law  Diet.  784;  Huyck  v. 

Beekman  v.  Hamlin,  19  Ore.  383;  Andrews,  113  N.  Y.  81. 


Objections  to  titl^.  S77 

agreement  unless  ujtdii  ohjcction  made  the  mortgage  is  cjin- 
celed;  and  the  fact  that  I  Ik-  mortgage  was  recorded,  and  that 
the  vendee  therefore  had  nolice  of  the  same,  is  immaterial 
where  the  true  meaning  and  imjjort  of  tlie  contract  is  to  con- 
vey an  indefeasible  estate J^  So,  also,  if  at  the  time  of  the 
contract  there  is  a  lease  outstanding  whicli  was  unknown  to 
the  vendee,  he  is  not  bound,  but  may  rescind  the  contract,  the 
vendor  not  being  in  a  situation  to  give  a  perfect  titleJ^  Nor 
will  a  purchaser  be  comi)elled  to  accept  a  titk'  which  may  be 
incumbered  with  a  condiliou,  it  being  doubtful  whether  the 
condition  is  or  is  not  valid.^^  And  generally,  if  from  the 
vendor's  negligence  or  default  the  proj)erty  becomes  incum- 
bered by  judgments,  taxes,  forfeitures  or  otherwise  before  the 
time  for  conveying  the  same  or  before  he  offers  to  perform  his 
contract,  he  cannot  insist  on  performance  by  the  other  i)arty 
until  he  relieves  the  title  from  such  subsequent  incum- 
brancesJ* 

A  restriction  upon  the  power  of  alienation,  or  a  reservation 
to  a  former  owner  of  a  right  of  repurchase  for  a  certain  tinu', 
is  an  incumbrance  which  diminishes  the  value  of  the  title; 
and  a  purchaser  who  has  contracted  to  buy  the  premises  with- 
out notice  of  the  existence  of  such  an  incumbrance  will  not 
be  compelled  to  take  the  property  subject  thereto,  or  at  least 
not  without  a  proper  allowance  thereforJ^ 

Where  adjoining  owners  have  by  grant  imposed  mutual  and 
corresponding  restrictions  upon  the  lands  belonging  to  each, 
for  the  purpose  of  securing  uniformity  in  the  position  of 
buildings,  such  covenants  are,  in  eifect,  reciprocal  easements, 
and  where  the  title  tendered  is  burdened  by  such  a  covenant 
restricting  the  use  of  a  certain  portion  of  an  entire  lot  frontage 
so  as  to  prevent  building  thereon,  it  is  an  incumbrance,  and 

71  If  in  such  case  the  vendee  has  remove  a  valuable  building  from 
paid  any  part  of  the  consideration  the  land,  the  purchaser  would  not 
money,  he  may  disaffirm  the  con-  be  compelled  to  complete  the  pur- 
tract  and  recover  back  the  money  chase.  Beckenbaugh  v.  Nally,  32 
which    he    has    paid.      Judson    v.  Hun   (N.     Y.)    160. 

Wass,  11  Johns.  (N.  Y.)  525.  -3  Post   v.    Bernheimer.    31    Hun 

72  Tucker  v.  Woods,  12  Johns,  (N.  Y.)  274;  Adams  v.  Valentine, 
(N.  Y.)    190.     Or  if  it  was  known    33  Fed.  Rep.  1 

that  the  property  was  subject  to  a       74  Cooper  v.  Tyler,  46  111.  462. 
lease,  yet  if  no  mention  was  made        ~''  Winne  v.  Reynolds,     6     Paiga 
that  the  tenant  had  the  right  to    (N.  Y.)  407. 


378  OBJECTIONS    TO    TiTLfi. 

tlie  vcndet'  will  bt*  justified  in  lefusinj;-  to  complete  his  pur^ 
chase."*'  The  existence  of  a  party  wall  agreement  whereby 
the  owner  of  a  lot  is  to  pay  a  portion  of  the  cost  of  the  wall 
in  the  event  of  the  use  of  same  by  him,  is  a  covenant  and  an 
incumbrance  which  runs  with  the  land  and  is  binding  upon 
his  granteeJ^ 

Where  there  are  trifling  incumbrances  upon  the  title'^'^  which 
were  known  to  the  vendee  at  the  time  he  contracted  to  pur- 
chase, it  has  been  held  that  a  specific  performance  will  be 
decreed  without  compensation;'^'-*  and  where  the  purchaser 
enters  into  possession  under  the  contract,  knowing  that  there 
is  a  slight  defect  in  the  vendor's  title  or  a  slight  incumbrance 
upon  it,  he  will  be  held  in  most  cases  to  have  waived  it.'^^ 
The  mere  fact  of  entry  does  not  of  itself,  however,  amount 
to  waiver;  there  must  be  other  circumstances,  such  as  show 
that  the  vendee  had  a  knowledge  of  defects,  and  intended  to 
accept  such  title  as  could  be  made,  relying  upon  the  covenants 
for  redress.^i 

If  a  purchaser  has  contracted  for  a  title  free  from  all  incum- 
brances he  cannot  be  compelled  to  accept  a  title  wherein  the 
use  of  the  property  or  any  part  thereof  is  restricted  to  specific 
purposes,  whether  such  restriction  is  inserted  in  the  deed 
tendered  or  appears  in  some  of  the  other  conveyances  that 
constitute  the  chain  of  title.  So,  too,  if  he  has  agreed  to  take 
the  land  subject  to  restriction  he  cannot  be  compelled  to 
consummate  the  purchase  when  the  so-called  restriction  in 
fact  creates  a  condition  as  distinguished  from  a  limitation  or 
covenant.  It  is  true  that  courts  lean  against  forfeiture,  and 
whenever  possible  will  construe  words  as  creating  a  covenant 
or  restriction  instead  of  a  condition,  yet  they  cannot  ignore 
the  legal  signification  of  language;  and  where,  in  such  case, 
the  restrictive  clause  creates  a  condition,  it  constitutes  a  fatal 
defect  in  the  title.  Contracts  for  the  sale  of  urban  property 
are  frequently  made  with  reference  to  the  use  of  the  land, 
taken  in  connection  with  adjoining  lands,  wherein  the  vendee 

7c  Wetmore  V.  Bruce,  118  (N.  Y.)  ^o  winne  v.  Reynolds,  6  Paige 
319.  (N.  Y.)  407. 

77  Burr  V.  Lamaster,  30  Neb.  688.        so  Coray  v.  Mathewson,  44  How. 

78  As  the  reservation  of  a  bar-    Pr.  (N.  Y.)  88. 

leycorn  rent,  or  anything  else  si  Jones  v.  Taylor,  7  Tex.  240. 
which  is  merely  nominal. 


OBJECTIONS    TO    TITLE.  379 

StipiilatoH  (o  luccpl  a  lillc  wliiili  shall  be  subject  to  a  H(M\i 
tilde  restricting  tlie  mode  of  use  of  tlie  laud  to  be  couveycd. 
CJiviu";  proper  etlect  to  sucli  a  coutraci  llie  vendee  would  he 
eulilled  to  have  a  clear  title,  free  frcjui  all  lucuiubrauces 
except  the  servitude;  but  he  would  not  be  recjuired  to  accept 
a  title  by  which  the  whole  estate  becomes  liable  to  forfeit un* 
in  case  the  part  subjected  to  the  restricted  use  is  ever  ap|)ro- 
priated  to  a  dillcrent   use.*^- 

§  313.  Continued — Unsatisfied  mortgage.  The  men^  exist- 
ence of  an  unsatislicd  niort^a^c,  or  llic  disclosure  of  this  fact 
by  the  public  records,  does  not  of  itself  constitute  a  valid 
j^round  of  objection  to  a  title,  jtiovided  the  mortj;a,ne  is 
incapable  of  enforcement  against  the  land;  and  where  the 
right  of  entry  or  foreclosure  has  been  cut  off  by  the  lapse  of 
time,  such  niort<;ag('  will  ordinarily  be  regarded  as  of  no  more 
effect  than  if  it  had  never  been  executed.  In  some  states  this 
is  a  matter  dependent  upon  statute,  which  fixes  the  jieriod 
during  which  foreclosure  is  allowed;  but  independent  of  any 
statutory  enactment  courts  will,  in  the  exercise  of  a  lawful 
prerogative,  make  certain  presumptions  of  payment.^^  The 
presumption  of  j)ayment  founded  on  the  lapse  of  time  and 
other  circumstances  does  not  always  proceed  on  the  belief 
that  the  thing  presumed  has  actually  taken  place,  but  is  raised 
for  the  purj)Ose  and  from  a  principle  of  (piieting  the  posses- 
sion. These  presumptions  are  founded  in  substantial  justice 
and  the  clearest  policy,  and  prevail  both  in  courts  of  equity 
and  law.  The  presumption  resolves  itself  into  this:  that  a 
man  will  naturally  enjoy  what  belongs  to  him;  and  is  a  prin- 
ciple of  decision  adopted  and  sanctioned  by  a  succession  of 
learned  judges  in  the  courts  of  every  state  in  the  I'nion. 

Ilence  it  is,  where  the  mortgagee  has  never  entered  under 
his  mortgage,  or  taken  steps  to  foreclose  the  same,  and 
twenty  years  or  more  have  been  suffered  to  elapse  since  the 
maturity  of  the  debt,  the  presum])tion  becomes  very  strong 
that  the  mortgage  has  been  discharged  by  ])ayment  or  other- 
wise,**"*    and    this    jjicsuiuplion    becomes    greatly    intensified 

82  Jeffries   v.   Jeffries,   117   Mass.    39  Mich.  733;  Jatksou  v.  Wood,  12 
184;   Adams  v.  Valentine.  33   Fed.    Johns.   (N.  Y.)  242. 
Rep.  1.  «•  Miller  v.  Smith.  IG  Wend.  (N. 

8:' See  Van   Vleet  v.   Blackwood.    Y.)   4G3;   Van  Vleet  v.  Blackwood, 

39  Mich.  733. 


380  OBJECTIONS    TO    TITLE. 

where  successive  grautees  have  had  the  uudisturbed  posses- 
sion of  the  premises  during  this  interval ;  and  if  a  party,  with 
knowledge  of  his  rights,  will  sit  still,  and  without  asserting 
them  pennit  persons  to  act  as  if  they  did  not  exist,  and  to 
acquire  interests  and  consider  themselves  as  owners  of  the 
property,  there  is  no  reason  why  the  presumption  should  not 
be  raised.^^ 

It  has  been  held,  however,  that  this  presumption  may  be 
rebutted  by  satisfactory  proof;  as,  that  interest  has  been 
paid  within  twenty  years;  the  continued  absence  from  the 
country  of  the  obligee;  the  continued  insolvency  of  the 
obligor,  or  other  strong  circumstances  showing  non-payment 
or  cause  for  forbearance.^^  But  the  statute  of  limitations  in 
most  cases  will  come  in  to  aid  the  presumption  of  payment 
by  interposing  a  bar  to  any  right  of  action. 

§  314.  Unpaid  taxes.  A  tax  or  assessment  imposed  by  law- 
ful authority  is  an  incumbrance  upon  title  until  satisfied,  and 
unless  the  vendor  will  cause  same  to  be  discharged  the  vendee 
is  under  no  obligation  to  accept  a  deed  or  complete  the 
purchase.^^ 

§  315.  TTnreleased  dower  rights.  No  small  amount  of  the 
litigation  arising  in  connection  with  titles  is  occasioned  by 
the  assertion  of  claims  for  dower  by  women,  who,  at  some 
stage  in  the  history  of  the  titk^,  have  sustained  marital 
relations  toward  some  of  the  parties  having,  or  assuming  to 
have,  an  interest  in  the  land.  Such  claims  are  more  frequently 
based  upon  the  fact  of  non-joinder  in  the  deeds  of  the  husband, 
yet  instances  occur  where  the  sole  merit  of  the  claim  lies  in 
the  fact  that  the  wife,  while  properly  uniting  with  the  husband 
in  execution,  has,  through  the  neglect  of  the  certifying  officer, 
failed  to  comply  with  statutory  requirements  relative  to 
acknowledgment.  As  the  acknowledgment  was  formerly 
regarded  as  the  essential  and  effective  act  whereby  a  wife 
estopped  herself  from  afterwards  claiming  dow  er,  such  claims 
have  often  been  successfully  urged.  It  is  important,  therefore, 
that  the  title  be  carefully  scrutinized  for  defects  of  this  char- 
acter;   and   where  a  possible  dower  claim  is   apparent  an 

85  Giles  V.  Baremore,  5  Johns.  s^  Morange  v.  Norris,  3  Abb. 
Ch.    (N.    Y.)    545.  App.  Dec.  320. 

«o  Hale  V.  Pack,  10  W.  Va.  152. 


OBJECTIONS    TO    TITLE.  381 

objetliou  .shuiihl  be  lodged,  and  if  the  objccliun  is  not  over- 
come by  satisfattoiv  evidence  that  no  Kuch  claim  can  arise, 
or  if  presented  cannot  be  maintained,  or  unless  the  objecti(m 
is  removed  by  a  release  of  the  dower  rij^ht,  the  title  should  be 
rejected  unless  the  purchaser  is  willin<^  to  assume  the  risk. 

There  would  seem  to  be  a  misconception  in  some  of  the 
earlier  cases  with  respect  to  the  real  nature  of  the  inchoate 
rij^ht  of  dower.  It  is  now  well  settled,  however,  that  such 
ri<j;ht  is  not  a  mere  possibility  or  continj^ency,  which  is  to  be 
deemed  an  incumbrance  only  when  it  becomes  consummate 
by  the  death  of  the  husband,  but  it  is  from  the  time  when  it 
attaches,  an  actual  lien — a  potential  incumbrance.'**  Indeed, 
it  has  been  held  that  it  is  more  than  a  mere  lien  and  consti- 
tutes a  substantial  rij^ht  of  liroperty.*^^  In  an3'  event  it  is 
paramount  to  all  conveyances,  contracts  or  incumbrances 
made  b}'  the  husband  durinjij  the  coverture,  and  calls  for  the 
utmost  scrutiny  in  the  examination  of  a  title. 

The  tendency  of  recent  decisions  is  to  discourage  stale 
claims  for  dower,  and  to  place  claims  of  this  character  strictly 
within  the  letter  of  the  law  in  respect  to  the  limitation  of 
actions  and  repose  of  titles.  Hence,  where  the  law  makes 
provision  for  the  quieting  of  title  by  adverse  possession  for  a 
limited  period,  if  such  possession  is  taken  and  maintained 
under  claim  and  color  of  title  made  in  good  faith,  the  remedy 
to  enforce  the  right  of  dower  has  been  held  to  be  embraced 
within  the  provisions  of  such  law;  and  a  widow  must  pursue 
her  remedy  within  the  time  therein  prescribed,  or  her  claim 
will  be  efl'ectually  barred  as  against  a  party  in  possession  and 
complying  with  such  law.'"'  T.ut  little  seems  to  have  been 
done  to  remedy  the  evils  of  stale  dower  claims  by  exj)ress 
enactments,  but  the  courts,  as  just  stated,  have  applied  the 
limitation  laws  to  claims  of  this  nature.  As  a  general  ruK'  it 
may   be  said  that  the  recovery  of  dower  is  barred   by  the 

88  Bigelow  V.  Hubbard,  97  Mass.  faith,  and  who  shall  continue  in 
195.  possession    for     seven     successive 

89  Shell  V.  Duncan,  31  S.  C.  547.  years  and  during  said  time  shall 

90  So  held  in  Brian  v.  Melton,  125  pay  all  taxes  assessed  on  the  land, 
111.  647,  under  a  law  providing  shall  be  held  and  adjudged  to  be 
that  every  person  in  the  actual  the  legal  owner  thereof.  And  see 
possession    of    lands    under    claim  Owen  v.  Peacock,  38  111.  33. 

and   color   of   title   made   in   good 


382  OBJECTIONS    TO    TITLE. 

statutory  limitations  that  apply  in  cases  of  actions  of  eject- 
ment/''^ and  when  this  can  be  satisfactorily  shown  the  ground 
of  the  objection  is,  of  course,  removed. 

§  316.  Dowress'  death.  Where  objection  is  made  to  the 
vendor's  title  for  the  reason  that  the  wives  of  any  of  the 
former  owners  failed  to  relinquish  their  dower,  proof  of  their 
death  i)rior  to  the  sale  will  obviate  such  objection;  and  in  like 
manner  proof  of  the  death  of  the  husband  of  a  dowress  more 
than  twenty  years  before  will  be  sufhcient  to  show  that  her 
dower  is  barred,  and  hence  no  incumbrance.^^ 

§  317.  Title  subject  to  defeasance.  Unless  he  stipulates  so 
to  do,  a  purchaser  will  not  be  compelled  to  accept  a  title  sub- 
ject to  be  defeated.  Thus,  he  is  under  no  obligation  to  take  a 
title  clouded  by  a  right  of  reverter  in  the  heirs  of  the  original 
grantor  by  reason  of  a  diversion  from  the  uses  limited  in  his 
conveyance,^^ 

§  318.  Trusts  and  other  equities.  Not  only  should  the  title 
disclosed  be  a  legal  title,  but  it  should  also  be  unhampered  by 
trusts  or  other  equities;  and  where  the  devolution  shows  that 
it  originated  in  trust,  no  matter  how  long  it  may  have  con- 
tinued unassailed,  it  cannot  be  said  to  be  marketable,  and  an 
objection  may  properly  be  lodged  against  it.  The  reason  for 
this  is  that,  as  a  general  rule,  length  of  time  is  no  bar  to  a 
trust  clearly  shown  to  have  once  existed  ;^^  and  while  this  rule 
is  not  without  its  appropriate  qualifications,  yet  as  long  as  the 
relation  of  trustee  and  cestui  que  trust  is  acknowledged,  the 
lapse  of  time  can  constitute  no  bar  to  the  granting  of  proper 
relief  for  the  parties  beneficially  interested.  If  there  has  been 
an  open  denial  or  repudiation  of  the  trust,  and  this  can  be 
shown  to  have  been  brought  home  to  the  knowledge  of  the 
parties  beneficially  interested,  so  as  to  compel  them  to  act  as 
upon  an  adverse  title,  or  when  time  and  long  acquiescence 
have  obscured  the  nature  and  character  of  the  trust,  or  where 

01  Beebe  v.  Lyle,  73  Mich.  114;  tion  by  the  original  grantee,  not- 
Winters  v.  DeTurk,  133  Pa.  St,  withstanding  the  limitation.  Uni- 
359.  versalist  Society  v.  Dugan,  65  Md. 

02  Lyman  v.  Gedney,  114  111.  388.  460. 

03  Nor  is  the  case  affected  by  the  o*  Gratz  v.  Prevost,  6  Wheat, 
fact  that  the  legislature  attempted  (U.  S.)  481. 

to   authorize   an   absolute   disposi- 


OBJECTIONS    TO    TITLE.  383 

the  acts  of  llic  patties  or  other  circumstances  give  rise  to 
presumptions  unfavorable  to  its  continuance,  a  court  of  equity 
will  freciucntly  refuse  to  grant  relief  upon  the  ground  of  lapse 
of  time  and  its  inability  to  do  complete  justice.  So,  too,  as 
length  of  lime  necessarily  obscures  all  human  evidence  and 
deprives  parties  of  the  means  of  ascertaining  the  nature  of  the 
original  traiisaetion,  it  operates,  by  way  of  presumption,  in 
favor  of  the  legal  title  and  against  imputations  that  may  be 
put  upon  it."^ 

It  is  a  well-established  rule,  however,  that  every  purchaser 
of  trust  property  with  notice  of  the  trust  takes  it  charged 
with  and  subject  to  that  trust. ■"'^  The  vested  interests  of  the 
beneficiaries  cannot  be  imi)aired  or  destroyed  by  the  voluntary 
act  of  the  trustee,''^  and  the  trust  will  follow  the  land  in  the 
hands  of  any  person  to  whom  he  may  convey  it  with  knowl- 
edge.^s 

§  319.  Equitable  estates — Legal  title  outstanding  in  trust- 
ees. An  equitable  estate  is  just  as  properly  the  subject  of 
barter  and  sale  as  a  legal  estate  vested  in  possession,  but  the 
law  presumes  that  the  contract  refers  to  a  legal  title  in  all 
eases  where  the  circumstances  do  not  rebut  such  presumption ; 
and  a  purchaser  who  has  contracted  for  a  marketable  title 
may  justly  object  to  an  equity,  however  strong.  Xor  does  the 
fact  that  the  vendor  possesses  the  entire  l^eneficial  use  of  the 
property,  or  that  the  outstanding  legal  title  is  vested  in  trust- 
ees who  may  be  compelled  to  convey  at  any  time,  in  any  way 
alter  the  case.  Until  such  outstanding  legal  title  is  extin- 
guished the  sale  cannot  be  enforced  against  the  vendee.^^ 

§  320.     Title  acquired  in  violation  of  trusts.    A  title  which 

05  The  lapse  of  forty  years  and  9«  Carpenter  v.   McBride,  3   Fla. 

the  death  of  all  the  original  par-  292;    Kent  v.   Plumb,  57  Ga.   207; 

ties  deemed   sufficient  to  presume  Gale  v.  Mensing,  20  Mo.  461;  Tal- 

the  discharge  and  extinguishment  bott  v.  Bell,  5  B.  Mon.   (Ky.)  320; 

of  a  trust,  proved  to  have  once  ex-  Ryan  v.  Doyle,  31  Iowa  53;    Ham 

isted  by  strong  circumstances;  by  v.  Ham,  58  N.  H.  70. 

analogy  to  the  rule  of  law,  which  »'  Shepard  v.  McEvers,  4  Johns, 

after  a  lapse  of  time  presumes  the  Ch.   (N.  Y.)   136. 

payment  of  a  debt,  surrender  of  a  »s  Gray  v.   Ulrich,   8    Kan.   112; 

deed  and  extinguishment  of  a  trust  Coble  v.  Nonemaker,  78  Pa.  St.  501. 

when     circumstances     require     it.  oo  Murry  v.  Ellis,  112  Pa.  St.  485. 
Prevost  v.  Gratz,  6  Wheat.  (U.  S.) 
481. 


384  OBJECTIONS    TO    T.TLE. 

discloses  the  fact  that  some  of  the  prior  veudois  have  violated 
some  fiduciary  trust,  even  though  such  fact  may  be  only 
inferential,  is  for  that  reason  defective  and  may  properly  be 
objected  to.  As  where  it  is  shown  that  a  trustee  has  pur- 
chased at  his  own  sale,  either  directly  or  indirectly,  a  pur- 
chaser from  him  would  not  be  protected  as  one  buying  in  good 
faith  and  without  knowledge  of  the  breach  of  trust;  and  the 
title  being  voidable  by  those  whom  the  trustee  was  bound  to 
protect,  should  be  rejected  by  the  purchaser.^ 

It  is  true  that  a  title  derived  through  the  violation  of  a  trust 
may  in  time  ripen  into  an  indefeasible  estate,  and  that  contin- 
uous adverse  possession  may  be  sufficient  to  preclude  those 
who  otherwise  might  have  asserted  superior  equities;  but 
while  courts  will  ordinarily  refuse  to  lend  their  aid  to  assist  a 
defrauded  party  wiio  fails  to  assert  his  rights  within  a  reason- 
able time,  it  is  nevertheless  nearly  impossible,  in  a  case  of  this 
kind,  to  say  what  is  a  reasonable  time,  or  with  accuracy  to 
determine  when  the  bar  of  the  statute  has  fully  intervened.  A 
very  great  length  of  time  might,  perhaps,  be  conclusive;  yet 
while  twenty  years  is  usually  named  as  the  shortest  period 
which  a  court  of  equity  would  be  bound  to  consider  as  an 
absolute  bar,  there  are  cases  where  sales  have  been  set  aside 
even  after  that  time.^  In  all  these  cases  diverse  and  varied 
circumstances  operated  to  affect  the  judgment  of  the  court; 
but  they  all  show  that  no  particular  time  can  be  regarded  as 
necessarily  conclusive,  and  that  a  purchaser  receiving  a  deed 
in  ignorance  of  the  occasion  or  circumstances  of  the  delay 

1  People     V.     Board     of     Stock-  proved.    Held,  that  the   title  was 

brokers,  92  N.  Y.  98.     In  this  case  defective,  as  it  appeared  that  the 

the  examination  of  the  title  showed  conveyances  were  but  one  transac- 

two  deeds,  which  constituted  links  tion,    the   executor   acting   in    the 

in  the  chain,  from  an  executor  to  double  capacity  of  seller  and  pur- 

a  third  person,  and  from  the  latter  chaser,  and  therefore  the  title  was 

back  to  the  executor,  under  whom,  voidable   at   the    election     of    the 

as     an     individual,     the     vendor  beneficiaries   named    in   the    will; 

claimed.      The    deeds   were    dated  also,  that  the  lapse  of  time,  it  being 

within  four  days  of  each  other,  and  less   than   twenty   years,   was   not 

were  recorded  upon  the  same  day.  conclusive    upon    them.     And    see 

No  accounting  or  settlement  of  the  Wormley    v.    Wormley,    8    Wheat, 

executor  had  been  had,  and  no  rati-  (U.  S.)  449. 

fication   of  the   transfer  by.  those  2  in  Hatch  v.  Hatch,  9  Ves.  (Eng, 

interested    under    the    will    was  Ch.)  292,  a  sale  was  set  aside  after 


OBJECTIONS    TO    TITLE.  385 

would  iiiii  the  risk  of  an  adveiHo  decision  or  hold  at  llic  best 
only  a  doubtful  title.  Infancy,  ignorance,  concealment  or  mis- 
representation may  conic  in  to  explain  and  excuse  tlie  delay 
and  prevent  it  from  amounting  to  ac(piiescence. 

^  321.  Party-walls.  The  piactice  of  economizing  space  and 
expenditure  in  populous  cities  by  the  erection  of  party-walls 
is  of  very  ancient  origin  and  almost  universal  observance. 
Their  use  has  the  ellect  to  create  cross-easements  on  the  lands 
of  the  respective  adjoining  proprietors  which  become  appur- 
tenant to  their  several  estates  ainl  jiass  to  their  resjx'ctive 
assignees  by  an}'  conveyance  that  may  be  effectual  to  transfer 
the  land  itself."'  Purchasers  from  such  parties  take  with  con- 
structive, if  not  actual,  notice  of  the  i)arty-wall  agreement, 
and  are  presumed  to  have  assumed  the  burdens  as  well  as  the 
benefits  which  are  incident  to  it.-* 

Yet  while  it  is  true  that  the  erection  of  a  party-wall  creates 
a  community  of  interest  between  the  neighboring  proprietors, 
there  is  no  just  sense  in  which  the  reciprocal  easement  for  its 
preservation  can  be  deemed  a  legal  incumbrance  upon  the 
property.-''  The  benefit  thus  secured  to  each  owner  is  not  con- 
verted into  a  burden  by  the  mere  fact  that  it  is  mutual  and  not 
exclusive.^  It  would  seem,  therefore,  that  where  land  is  sold 
and  at  the  time  is  imjiroved  by  buildings,  the  buildings  form- 
ing the  inducement  to  the  sale,  the  fact  that  the  exterior  walls 
are  party-walls  will  not  be  permitted  to  be  urged  as  an  objec- 
tion to  the  consummation  of  the  contract  by  the  vendee;  nor 

twenty  years.    In  Dobson  v.  Racey.  <  Roche    v.    Ullman,  104    111.  1; 

3     Sandf.    (N.   Y.)     Ch.   66,    after  Main   v.   Cumston,   98    Mass.   317; 

twenty-seven  years.  Rindge   v.    Baker,    57    N.   Y.    209; 

:' Hart   v.    Lyon,   90   N.   Y.   663;  Rogers  v.  Sinsheimer,  50  N.  Y.  646; 

Brooks    V.    Curtis,    50    N.    Y.    639;  Thompson  v.  Curtis,   28  Iowa  229. 

Thompson  v.  Curtis,  28  Iowa  229;  r,  Mohr  v.  Parmelee,  43  N.  Y.  Sup. 

Ingalls  V.  Plamondon.  75  111.  123;  Ct.   328;     Hendricks    v.   Stark,   37 

Standish   v.    Lawrence,   111   Mass.  N.  Y.  111.     But  where  a  party  wall 

111.     It  has  been  held  that  a  wall  rests    on     land     otherwise     unim- 

between  two  buildings  of  adjoining  proved  with  an  agreement  that  it 

owners,  used  as  a  common  wall  for  shall  be  paid  for  when  used,  this 

twenty  years,  becomes  a  party  wall,  would  create  an  incumbrance.    See 

whether  equally  upon  the  lots  of  Burr  v.  Lamaster,  30  Neb.  688. 

each  or  wholly  upon  the  lot  of  one  «  Partridge  v.  Gilbert,  15  N.  Y. 

owner.     See  McVey  v.  Durkin,  136  601. 
Pa.  St.  418. 

25 


38G  OBJECTIONS    TO    TITLE. 

will  smli  party-walls  be  considered  as  such  an  easement  or 
incumbrance  upon  the  premises  as  will  relieve  a  vendee  from 
his  contract  to  purchase  them,  although  he  was  ignorant  that 
the  walls  were  party-walls  when  he  made  the  contract.  If 
there  has  been  no  positive  representation  of  their  condition  or 
character  the  failure  of  the  vendee  to  infonn  himself  on  the 
subject  indicates  his  indifference  as  to  the  jjarticular  charac- 
ter of  the  walls,  and  shows  that  he  was  content  to  buy  with- 
out being  at  the  trouble  of  examination  or  inquiry.  This 
omission,  may  be  evidence  of  his  own  indiscretion  and  want 
of  caution  but  cannot  be  imputed  as  a  wrong  to  the  vendor 
when  he  has  neither  done  nor  said  anything  to  mislead  him. 
In  such  a  case  there  would  be  no  failure  of  any  substantial 
inducement  to  the  contract.^ 

§  322.  Unopened  streets.  A  vendee  is  entitled  to  all  of  the 
land  bargained  for,  and  will  not  be  forced  to  accept  a  lot 
whose  area  is  diminished  by  a  street  laid  out  on  a  citj'  plan  as 
running  through  the  property,  the  existence  of  which  was 
unknown  to  him  when  the  contract  was  made.^  This  is  in 
accordance  with  the  principle  that  a  vendee,  without  knowl- 
edge of  any  defect  in  title  when  the  agreement  was  executed, 
is  not  compelled  to  accept  a  doubtful  title  or  one  that  will 
probably  require  a  lawsuit  to  establish  its  validity;  and 
where  the  agreement  calls  for  a  marketable  title  or  a  title  free 
from  incumbrances,  an  objection  may  properly  be  made  for 
this  reason,  and  the  existence  of  the  street  will  constitute  an 
incumbrance  or  restriction  upon  a  portion  of  the  lot  sufficient 
to  bar  the  vendor  from  a  decree  in  his  favor.'* 

§  323.  Clouds  upon  title.  As  has  been  stated,  unless  the 
/  vendee  has  otherwise  agreed  it  is  his  undoubted  right  to 
\/  demand  a  "clear"  title;  and  if  obscurations  appear  thereon  he 
may  reject  it  for  that  reason.  A  "cloud"  consists  of  a  deed, 
lien,  charge  or  incumbrance  of  any  kind  which  casts  a  shadow 
upon  the  title,  regular  and  apparently  valid  upon  its  face,  but 
in  fact  irregular  and  void  from  circumstances  which  have  to 
be  proved  by  extrinsic  evidence.^^     If  the  invalidity  plainly 

1  Hendricks  v.  Stark,  37  N.Y.  106.  lo  Murphy  v.  Mayor,  etc.,  of  Wil- 
8  Peck  V.   Jones,   70   Pa.   St.  83;  mington,    10    Houst.     (Del.)     108; 
Kyle  V.  Kavanagh,  103  Mass.  356.  Crooke  v.  Andrews,  40  N.  Y.  547; 
'••Appeal     Sav.    Bank     of     Pitts-  Sanxay  v.  Hunger,  42  Ind.  44;  Da- 
burgh,  3  Atl.  Rep.  821.  vidson  v.  Seegar,  15  Fla.  671. 


OBJECTIONS    TO    TITLE.  387 

aitpcjU'S  oil  tli<'  I'mcc  of  llic  iiistniiiicii!,"  or,  altlioii^Mi  iio( 
apparciil  on  tlic  w  litiii;:,,  if  il  is  shown  l)y  any  ol"  iIh-  iirdiin- 
inaiics  wliicli  atlciMl  il,  or  in  any  of  the  links  wliirli  connect 
if  with  the  lill<','-  so  tliat  no  lapse  of  lime  nor  cliaii^^e  of  cir- 
eiiiiislames  can  weaken  llio  iiicans  of  defense,  hikIi  an 
iustrniiienl  docs  not,  in  a  jiisl  sense,  even  cast  a  clond  iiixin 
the  tith'  or  diminish  tlu'  security  of  the  owner  of  the  hmd;^'' 
for  tlie  nih'  is  well  .settled  that  such  an  instrument  can  work 
no  niischief,  and  that  no  occasion  arises  for  equitable  inter- 
ference for  its  removal  or  cancellation.'^ 

On  the  other  hand,  anything  which,  if  asserted  by  action 
and  jnit  in  evi<h'nce,  would  compcd  the  production  of  defend- 
ant's title  is  a  cloud,'''  Anything  which  may  injuriously  affect 
title,  or  may  be  vexatiously  used  against  the  owner  of  such 
title,  properly  conies  under  the  same  definition;'"  and  this  will 
apply  to  all  matters  where  the  invalidity  can  only  be  made  to 
appear  b}'  extrinsic  evidence.^'^  The  matters  which  go  to  con- 
stitute a  cloud  are  such  as  are  usually  enumerated  under  the 
head  of  defects  of  title,  and  may  consist  of  agreements  for 
conveyance,  void  because  of  extrinsic  facts  ;^^  a  certificate  of 
sale  under  a  void  levy;i'-'  a  sale  made  under  a  mortgage  with 
power  after  the  payment  of  the  debt;-^  a  deed  made  without 


11  R.  R.  Co.  V.  Schuyler,  17  N.  Y.  Fonda  v.  Sage,  4S  N,  Y.  173;   Mar- 

599;   Sloan  v.  Sloan,  25  Fla.  53.  tin  v.  Graves,  5  Allen  (Mass.),  661. 

1^  Fonda  v.  Sage,  48  N.  Y.  173;  i' Douglass    v.    Nuzam,    16    Kan. 

Griswold  v.   Fuller,   33    Mich.   268.  515;  Sanxay  v.  Hunger,  42  Ind.  44; 

As  where  title  is  deduced  through  Alden    v.    Trubee,    44    Conn.    455; 

a  judicial  sale,  where  the  proceed-  Daniel   v.    Stewart,   55    Ala.    278; 

ings  which  were  the  basis  of  such  Crooke  v.  Andrews,  40  N.  Y.  549. 

sale,  and  upon  which  the  validity  is  As  the  record  of  an  agreement 

of   the   adverse   title  depends,  are  for  sale  upon   condition,   with  no 

shown  to  be  void  for  jurisdictional  notification    of    its    acceptance   or 

defects.     Florence    v.    Paschal,    50  compliance     with     same.      Sea     v. 

Ala.  28;    Hatch  v.  City  of  Buffalo,  Morehouse,   79   III.   216.     Or  agree- 

38  N.  Y.  276.  ment  not  accepted  in  time  but  aft- 

I't  R.  R.  Co.  V.  Schuyler,  17  N.  Y.  erwards  recorded.     Larmon  v.  Jor- 

599;    Bogert  v.  City  of  Elizabeth,  dan,  56  111.  204. 

27  N.  J.  Eq.  568.  i»  Shannon   v.   Erwin,   11    Heisk. 

i-t  Fonda  v.  Sage,  48  N.  Y.  173;  (Tenn.)  337;  Stout  v.  Cook,  37  111. 

Cohen  v.  Sharp.  44  Cal.  29.  283. 

1''  Lick  v.  Ray,  43  Cal.  83.  20  Redmond  v.  Packenham,  66  111. 

leDulI's  Appeal.  113  Pa.  St.  510;  434. 


388  OBJECTIONS    TO    TITLE. 

aiithoi'it.v;^'  a  7iioi'tji;a}j;e  paid  but  not  rt'leased,^^  or  one  j^iven 
without  consideration. 

§  324.  Purchase  with  notice  of  defects.  It  has  been  held 
that,  where  a  purchaser  knows  when  he  makes  his  contract 
that  there  is  a  defect  in  the  title,  and  that  it  will  take  consid- 
erable time  to  remove  it,  or  acquires  this  knowledge  after  his 
purchase  and  acquiesces  in  the  delay,  or  proceeds,  with  knowl- 
edge of  the  defect,  in  the  execution  of  the  contract,  he  cannot 
afterwards  eomplain.^^  Frequently  the  act  of  taking  posses- 
sion with  knowledge  of  defects  will  be  held  to  be  a  waiver  of 
the  right  to  object  for  that  reason.^-* 

§  325.  Variance  and  discrepancy — Flaws.  It  will  not  infre- 
quently happen  that  an  examination  of  the  title  discloses  an 
apparent  defect  of  title  in  the  nature  of  a  flaw,  but  which  is 
not  so  in  fact,  the  apparent  flaw  having  been  occasioned  by 
an  imperfect  designation  or  misnomer.  Thus,  where  a  deed 
to  William  Harmon  is  followed  by  a  conveyance  from  William 
Herman,  there  is  an  apparent  break  in  the  chain  unless  other 
evidence  is  produced  to  show  the  identity  of  person.  There 
can  be  no  doubt  that  a  title  disclosing  such  a  state  of  facts  is 
objectionable  for  that  reason;  and  notwithstanding  the  names 
may  stand  for  and  represent  but  one  person,  the  variance  is  of 
such  a  character  as  to  raise  grave  doubts,  while  the  defect 
would  clearly  be  a  violation  of  the  terms  of  an  agreement  to 
furnish  a  clear  title  deducible  of  record. 

In  construing  deeds  of  this  character,  however — that  is, 
where  a  party  takes  under  a  misnomer,  but  conveys  by  his 
proi)er  name — courts  are  ever  inclined  to  grant  the  widest 
leniency;  for,  in  the  great  influx  of  foreign-speaking  popula- 
tion w^hich  the  United  States  is  constantly  receiving,  mistakes 
must  occur  in  adapting  to  the  English  forms  of  pronunciation 
foreign  names  and  the  spelling  of  the  same;  hence  it  has  been 
held  that  a  deed  to  Mitchell  Allen  followed  by  a  deed  from 
Michael  Allaine  is  not  a  fatal  variance,  and  the  name  will  be 

21  Carter  v.  Taylor,  3  Head  and  the  intervening  equities. 
(Tenn.),  30.  Where  time  is  not  of  the  essence 

22  Matheson  v.  Thompson,  20  Fla.  of  the  contract  the  vendor  will  be 
790.  allowed  a  reasonable  time  to  obtain 

23  In  such  case  specific  perform-  or  perfect  title.  Rader  v.  Neal,  13 
ance   will   be    decreed,   with   strict  W.  Va.  373. 

regard  to  the  terms  of  the  contract       -^  Jones  v.  Taylor,  7  Tex.  240. 


OBJECTIONS    TO    TITLE.  389 

coiiHidcrcd  (he  sniiic-"''  S(t,  also,  I  lie  ii<-;,Mi;jcii(('  of  tlic  iccoid- 
ui<f2;  ofliccr  will  often  iirodiicc  a  <lispaiit_v  of  (liis  kiud;  as 
where  (lie  records  s]iow<'d  a  deed  to  l^lecla  Wilds,  and  u  snb- 
seijnent  deed  of  the  same  iiro{)ert,v  from  Kleeta  Wihh-r,  Wilds 
being,  however  the  trne  name.-"  In  each  of  the  fore<,'oing 
cast's  as  well  as  in  cases  similar  thereto,  the  defect  of  title  as 
shown  l).v  the  I'ecords  wonld  nnd(jiil)t«'dl,v  be  siiflicient  to  war- 
rant an  intendin;^  iniicliaser  in  rejectinj;-  the  title.  The  dis- 
similarity in  the  names  wonld  prevent  the  operation  of  the 
rule  respecting  iiJcm  aoiians,  and  the  lej^^al  elTect  wonld  be  that 
of  an  entire  stranger  to  the  title  conveying  the  same  and  pass- 
ing it  on  tlirongh  the  chain  to  the  last  vendee.  15nt  without 
disputing  the  rule  that  a  marketable  title  must  be  free  from 
reasonable  doubt,  it  has  frequently  been  held  that  defects  in 
the  record  or  paper  title  may  be  cured  or  removed  by  i)arol 
evidence.-^  A  purchaser  cannot  justify  his  refusal  to  perform 
by  a  mere  cajttious  objection,  but  must  show  that  there  is 
ground  for  a  reasonable  doubt  as  to' the  title  offered,  such  as 
alTects  its  value  and  would  interfere  with  its  sale  to  a  reason- 
able iturt'haser,  and  thus  render  the  land  unmarketable.  A 
defect  in  the  record  title,  if  amounting  to  a  j)ositive  tlaw, 
would,  under  most  circumstances,  furnish  a  reasonable  basis 
for  objection;  but,  on  the  other  hand,  if  competent  evidence  is 
furnished  showing  conclusively  a  mistake  in  the  record  or  the 
absolute  identity  of  person  with  the  ditlerent  names,  together 
with  such  other  matters  as  would  leave  the  case  free  from  any 
reasonable  doubt  that  the  vendor  possessed  and  could  convey 
title,  then,  notwithstanding  the  apparent  defect  in  the  chain 
of  title  as  shown  by  the  records,  a  purchaser  could  not  justly 
refuse  to  perform  his  agreement.-^ 

§  326.  Stipulation  for  failure  of  title.  It  is  now  customary 
to  make  but  a  small  cash  payment  at  the  time  of  closing  a 
contract,  where  provision  is  made  for  the  furnishing  of  an 
abstract  of  title;  and  this  |iayment.  while  it  applies  u])on  the 
purchase,  is  generally  regarded  more  in  the  light  of  an  earn- 

s"' Chiniquy   v.   Catholic   Bishop,  (N.  Y.)    229;    Murray  v.   Harway, 

41  111.  148.  56  N.  Y.  337. 

-«  Hellreigel  v.  Manning,  97  N.Y.  2*  Hellreigel  v.  Manning,  97  N.  Y. 

56.  66. 

27  Miller   v.    Macomb,    26   Wend. 


390  OBJECTIONS    TO    TITLE. 

est — a  guaranty  of  good  faith — to  be  retained  in  case  the 
purchaser  makes  default,  or  to  be  returned  if  the  title  after 
examination  should  i)rove  unmarketable.  The  customary  stip- 
ulation is  that,  ''should  the  title  to  the  property  not  prove 
good,  then  the  payment  to  be  refunded."  The  object  of  such 
a  clause  is  to  avoid  disputes  about  the  title,  and  while  it  is 
being  adjusted  the  purchaser  keeps  his  money,  and  the  vendor 
\Aill  be  enabled  to  find  another  purchaser  if  the  vendee  is  dis- 
satisfied with  the  title.  But  the  vendee,  in  such  case,  must 
make  his  election.  He  cannot  claim  the  benefit  of  the  pur- 
chase and  refuse  to  make  his  payments.^!' 

§  327.  Agreement  to  furnish  abstract,  when  an  undertaking 
in  respect  to  title.  A  vendor's  obligation  in  respect  to  title  is 
to  be  determined  usually  from  the  character  of  the  conveyance 
to  be  made  rather  than  from  any  agreement  in  respect  to  fur- 
nishing an  abstract.  The  office  of  the  latter  is  purely  advis- 
ory; it  is  a  compendium  of  infonnation  only,  and  it  is  pre- 
sumed that  the  vendee  upon  its  perusal  is  to  exercise  his  own 
judgment  with  respect  to  any  disclosures  it  may  make.  The 
agreement  of  the  vendor  may  be  to  furnish  a  "satisfactory 
abstract  of  title,"  but  this  in  itself  cannot  be  said  to  imply 
any  undertaking  on  the  part  of  the  vendor  that  the  title  dis- 
closed shall  be  marketable  or  free  from  doubt.  It  is  the 
abstract,  not  the  title,  that  is  to  be  satisfactory;  and  this 
has  reference  to  its  foinn,  make-up,  etc.,  and  to  the  responsi- 
bility of  the  examiner  who  may  have  compiled  it  and  certified 
to  its  correctness. 

Where  the  contract  specifically  provides  for  an  abstract 
showing  a  particular  title,  this  may  reasonabl^^  be  construed 
as  an  undertaking  for  title,  and  as  an  agreement  to  produce 
evidence  of  such  title,  in  default  of  which  objections  would 
lie;  but  even  in  such  a  case  the  recitals  of  the  agreement  con- 
cerning the  estate  to  be  conveyed  and  the  deed  to  be  given 
would  probably  control  in  the  construction  of  the  contract. 

A  clause  which  provides  that  the  vendor  is  to  furnish  a  sat- 
isfactory abstract  of  title  and  give  a  quitclaim  deed,  or  one 
with  limited  covenants  against  the  vendor's  own  acts,  upon 
tender  of  which  the  cash  payments  are  to  be  made,  implies  no 
undertaking  as  to  the  character  of  title  to  be  conveyed,  but, 

29  Brizzolara  v.  Mosher,  71  III.  41. 


OBJECTIONS    TO    TITLE.  .^91 

On  the  contrary,  shows  thai  llu-  vendor  assuiiics  no  rcsitonsi- 
bility  as  to  the  title  any  further  than  it  may  have  been  affected 
by  his  own  acts.''"  In  sucli  a  case,  if  the  liUc  is  free  from  rea- 
sonable objection,  the  vendee  would  be  bound  to  accept  it; 
if  not,  he  mi^dit  either  accept  or  reject  it,  as  he  sliould  <'lect. 

>;  328.  Immaterial  defects.  It  has  been  held  that  immate- 
rial defects  and  nu'rely  technical  objections  will  not  defeat 
a  sale,  and  that  a  court  will  not  permit  a  puicliaser  to  avoid 
his  contract  without  seeinj?  that  the  object  of  the  purchase  is 
defeated  and  that  it  would  l)e  injurious  to  him  to  enforce  the 
contract.''^  This  is  particularly  true  where  the  purchaser  con- 
tracts with  full  knowdedge  of  the  situation  of  the  premises  or 
the  condition  of  the  title;-'-  and  if  lie  {^ets  substantially  what 
he  bar<;ained  for,  he  must  complete  the  ]iurchase  and  take  his 
deed.  This  is  a  matter,  however,  which  rests  in  the  sound 
discretion  of  the  court,  who  should  weij^h  the  object  and 
inducement  of  the  purchaser,  and,  looking  to  the  merits  and 
substantial  justice  of  each  particular  case,  if  the  sale  be  fair, 
relieve  or  not  from  the  purchase,  accordinji  as  the  character 
of  the  transaction  and  circumstances  may  seem  to  require.^^ 

As  the  law  does  not  regard  trifles,  a  reservation  of  a  pe])])er- 
corn  or  any  other  rent  which  is  merely  nominal  is  not  a  valid 
objection  to  the  title  of  the  vendor,  who  holds  subject  to  the 
payment  of  such  nominal  rent;  and  so,  in  like  manner,  it  has 
been  held  that  it  is  no  valid  objection  to  the  title  of  the  vendor 
that  the  conveyance  under  which  lie  holds  contains  a  reserva- 
tion of  mines  and  minerals  and  water  privileges,  if  from  the 
evidence  there  is  no  reason  to  suppose  there  are  any  minerals 
or  water  privileges  on  the  premises.^^ 

§329.  Waiver  of  objections  to  title.  It  may  happen  that 
the  purchaser  is  satisfied  with  the  title  without  investigation, 
or  that  he  ])refers  to  take  the  same  and  rely  upon  the  cov- 
enants of  his  deed  for  protection  against  adverse  claims;  and 
if  for  any  reason  he  sees  fit  to  forego  examination  and  waive 

30  Fitch  V.  Willard,  73  111.  92.  33  Riggs  v.  Pursell.  66  N.  Y.  193; 

31  Riggs  V.  Pursell,  66  N.  Y.  193.    King    v.     Bardeau.    6    John.    Ch. 
3-'Cradaock  v.   Shirley,  3  A.  K.    (N.  Y.)  38. 

Marsh.   (Ky.)    288;   Winne  v.  Rey-       34  winne    v.    Reynolds.    6    Paige 
nolds.  6  Paige  (N.  Y.).  407;  Tomp-     (N.  Y.),  407. 
kins  V.  Hyatt,  28  N.  Y.  347. 


392  OBJECTIONS    TO    TITLl^. 

all  objections  to  title,  and  this  intention  is  unequivocally 
expressed,  there  can  be  no  doubt  that  he  will  be  held  to  the 
tenns  of  his  aj;reenient,  even  thoufth  there  is  provision  for  an 
abstract  of  title,  and  by  the  abstract  serious  defects  and 
imperfections  are  disclosed. 

The  mere  fact  of  takinj]^  possession  and  exercising  acts  of 
ownership  over  the  land  will  not  preclude  the  purchaser  from 
his  right  to  investigate  the  title,  unless  it  clearly  appears  that 
he  intended  to  waive  and  has  actually  waived  such  right. 
The  waiver  is  always  a  question  of  intention,  and  one  of  fact 
from  all  the  circumstances,  and  not  an  arbitrary  presumption 
of  law  from  the  mere  fact  of  taking  possession;  and  where  by 
the  terms  of  the  contract  the  vendor  was  to  give  immediate 
possession,  and  also  to  furnish  an  abstract  of  the  title,  but 
with  no  time  fixed  for  the  latter,  this  will  have  an  important 
bearing  upon  the  question  of  waiver  of  objections  to  the  title 
by  the  vendee  in  taking  possession,  as  possession  in  such  case 
is  consistent  with  the  contract.^^  It  is  better,  however,  that 
the  purchaser  should  not  take  possession  until  every  objection 
to  the  title  has  been  removed,  lest  the  act  should  be  deemed 
an  acceptance  of  the  title;  and  the  rule  deduced  from  the 
English  cases  is  that,  if  the  purchaser  take  possession  of  and 
enjoy  the  property,  it  is  the  duty  of  the  court  to  make  every 
reasonable  presumption  in  favor  of  the  contract.^'^  Still,  the 
current  of  English  decisions  coincides  with  the  views  first 
stated,  and  announces  the  doctrine  that  a  purchaser  may  with 
the  concurrence  of  the  vendor  safely  take  possession  of  the 
land  at  the  time  the  contract  is  entered  into,  as  he  cannot 
be  held  to  have  waived  objections  of  which  he  was  not  aware; 
and  if  the  purchase  cannot  be  completed  on  account  of  objec- 
tions to  the  title,  he  will  not  be  bound  to  pay  rent  for  the  prop- 
erty, even  though  the  occupation  of  it  has  been  beneficial  to 
him.37 

Yet,  while  the  mere  fact  of  taking  possession  does  not  in 
itself  amount  to  a  waiver  of  objections  to  title,  and  while 
other  circumstances  are  usually  required  to  raise  the  pre- 
sumption of  waiver,  if  the  purchaser  does  enter  into  possession 

35  Page  V.  Greeley,  75  111.  400.  •'"  See  1  Sug.  Vend.  12,  and  cases 

30  And  see  Richmond  v.  Gray,  o    cited. 
Allen    (Mass.),  25. 


OBJECTIONS    TO    TITLE.  393 

Under  the  contract  with  knowlcdj^'c  of  a  slij^ht  defect  in  the 
vendor's  title  or  a  slij^lit  incuinliiaiice  iij)on  it,  he  will  be  hehl 
in  many  cases  to  have  waived  his  objections,  and  will  be 
deemed  to  have  accepted  the  title  as  he  knew  it  existed,  intend- 
in;,'  to  rely,  in  ease  of  failure,  upon  the  covenants  of  warranty 
for  redress.-''** 

§330.  Effect  of  delay  in  making  objection.  Where  the  jjur- 
chase  of  land  is  made  upon  condition  that  a  perfect  title  shall 
be  shown,  the  jjurehaser,  in  the  absence  of  any  stipulation  as 
to  time,  is  only  entitled  to  a  reasonable  j)eriod  in  which  to 
determine  whether  he  will  take  the  title  the  vendor  has  or 
reject  it.  He  cannot  keep  the  contract  open  indefinitely,  so  as 
to  avail  of  a  rise  in  the  value  of  the  property,  or  relieve  him- 
self in  case  of  a  depreciation.^^  Hence,  any  unreasonable 
delay  by  the  purchaser  in  the  exercise  of  his  option  to  avoid 
the  contract  for  objections  to  the  title  will  defeat  his  right  to 
a  specific  performance.*^ 

If  a  day  has  been  fixed  for  the  conveyance  of  the  property, 
the  vendee,  if  he  wishes  to  object  to  the  title,  must  give  notice 
of  his  objections  a  reasonable  time  previous  thereto,  to  enable 
the  vendor  to  remove  the  objections  if  possible,  and  to  make 
conveyance  at  the  time  specilied;  and  in  case  of  his  neglect  so 
to  do,  a  court  of  equity  may  consider  a  strict  performance  of 
the  contract  by  a  conveyance  on  the  specified  day  as  waived. 
And  where  the  vendor  has  not  been  guilty  of  gross  ni'giigenee 
in  perfecting  his  title,  equity  may  decree  a  specific  perform- 
ance upon  a  bill  filed  by  him,  although  the  title  was  not  i»er- 
fected  on  the  specified  day,  unless  the  time  of  perfecting  the 
same  is,  by  the  terms  of  the  agreement,  made  an  essential 
part  of  the  contract.'** 

38  See   Jones  v.   Taylor,   7   Tex.  himself  as  to  the  title  and  make 

240;    Winne  v.  Reynolds,  6  Paige  payment    within    two    weeks,    but 

(N.  Y.),  407;   Riggs  v.  Pursell,  6G  failed  to  do  so,  and  more  than  a 

N.  Y.  193;   Craddock  v.  Shirley,  3  year  afterwards  tendered  the  pur- 

A.  K.  Marsh.  (Ky.)   288.  chase    money    and    demanded    the 

30  Hoyt  V.  Tuxbury.  70  111.  331.  conveyance,     held,    that    he     was 

40  Unusual  delay,  unexplained  by  guilty  of  laches,  and  not  entitled 

equitable  circumstances,  will  ordi-  to  conveyance.     Lanitz  v.  King,  6 

narily  bar  any  claim  for  relief  in  S.  W.  Rep.   (Mo.)   263. 

equity.    Walker  v.  Douglass,  70  111.  <i  More   v.   Smedburgh.   8   Paige 

445;    Iglehart   v.    Vail.    73    111.    63.  (N.  Y.),  600. 
Where  the  vendee  was  to  satisfy 


394  OBJECTIONS    TO    TITLE. 

§  331.  Defects  in  the  subject-matter.  Aside  from  objec- 
tions to  the  title  the  piu'chaser  may  sometimes  found  objec- 
tions upon  matters  connected  with  or  incident  to  the  land 
itself.  Ordinarily,  he  will  be  presumed  to  know  the  condi- 
tion of  the  property  and  to  purchase  with  notice  of  its  charac- 
ter, condition  and  surroundings;  and  unless  some  imposition 
has  been  practiced  upon  him  he  will  not  be  heard  to  object  on 
account  of  the  same.  Nor  will  he  be  permitted  to  refuse  to 
perform  because  of  trilles  for  which  compensation  can  be 
readily  made.^-  Where  the  purchaser  gets  substantially  all 
for  which  he  contracted,  a  slight  deficiency  will  form  no 
ground  for  a  refusal  to  proceed,  where  the  deficiency  is  occa- 
sioned by  no  bad  faith  on  the  part  of  the  vendor,  and  when  a 
full  compensation  can  be  made  in  money.^^  This  is  undoubt- 
edly the  rule  in  equity,  but  it  seems  it  may  not  always  be 
invoked  at  law;  and  where  a  vendor  brings  his  action  not  to 
compel  a  specific  performance  but  to  recover  damages  for  a 
refusal  to  perform,  he  must  be  held  strictly  to  the  very  terms 
of  his  agreement,  and  show  performance  of  all  the  conditions 
necessary  to  be  performed  on  his  part  to  put  the  vendee  in 
default. 

A  vendee  is  ordinarily  entitled  to  the  property  in  the  condi- 
tion in  which  it  was  when  bargained  for,  and  he  may  refuse 
to  take  it  in  an  altered  or  inferior  condition;  and  while  a  court 
of  equity  will  in  most  instances  decree  performance  where  it 
is  apparent  that  compensation  can  be  made  in  money  for  the 
altered  condition  of  the  property,  yet  at  law  the  vendor  by 
his  own  failure  to  perform  w'ould  have  no  right  of  action  for 
damages  against  his  vendee.^^ 

42  As,  for  instance,  that  a  water-  of   the    remainder,   the    purchaser 

wheel  was  slightly  out  of  repair,  or  may  be  compelled  to  accept  com- 

that  certain  articles  of  machinery  pensation  for  such  deficiency  and 

were   claimed   by  a  tenant,   there  perform  the  agreement.     De  Wolf 

being  no  bad  faith  on  the  vendor's  v.  Pratt,  42  111.  198. 
part.     Towner  v.  Tickner,  112  111.        -i*  As  where  T.  entered  into  a  con- 

217.    But  see  Smyth  v.  Sturges,  108  tract  with  defendant,  by  which  T. 

N.  Y.  495.  agreed  to  sell  to  defendant,  and  the 

•43  The  general  equity  doctrine  is  latter  agreed  to  purchase,  certain 

that,  although  there  may  be  a  defi-  lots  upon  which  were  stores,  and  to 

ciency  in  the  property  sold,  if  the  convey  the  same  by  warranty  deed 

deficiency    is    inconsiderable,   and  free  from  all  incumbrances.   There 

does  not  materially  affect  the  value  were  at  the  time  various  fixtures. 


OBJECTIONS    TO    TITLE. 


39; 


consisting  of  partitions,  gas-pipe, 
plumbing,  etc.,  wliith  liad  been  put 
in  by  a  tenant,  who  afterwards  and 
Ijefore  the  tender  of  a  deed  re- 
moved them,  in  consequence  of 
which  defendant  refused  to  talte 
title.  T.  offered  to  make  compen- 
sation, but  this  was  also  refused. 
In  an  action   to  recover  damages, 


held,  that  the  defendant  was  en- 
titled to  the  stores  in  the  condition 
they  were  when  bargained  for,  and 
his  refusal  to  take  them  with  the 
fixtures  removed  was  not  a  breach 
of  the  contract,  and  that  the  action 
was  not  maintainable.  Smyth  v. 
Sturges,  108  N.  Y.  495. 


PART  III 
THE  CONVEYANCE. 


CHAPTER  XII. 


THE    MEDIUM    OF    TRANSFER. 


332. 

Deeds — Defined  and  distin- 

§344. 

When    vendee    entitled    to 

guished. 

deed. 

333. 

Forms  of  conveyance. 

345. 

Time  to  prepare  deed — De- 

334. 

Deeds  of  bargain 

and  sale. 

mand  for  same. 

335. 

Warranty  deeds. 

346. 

Vendee's    right    to    inspect 

336. 

Quitclaim  deeds. 

deed. 

337. 

Release. 

347. 

Vendee  not  required  to  take 

338. 

Confirmation. 

deed  from  third  party. 

339. 

Surrender. 

348. 

When  contract  has  been  as- 

340. 

Assignment. 

signed. 

341. 

Defeasance. 

349. 

Objections  to  deed. 

342. 

Covenant  to  stand  seized. 

350. 

Duty  of  preparing  deed. 

343. 

Imperfect    deed— 
and  effect. 

■Operation 

351. 
352. 

What  method  of  conveyance 

is  sufficient. 
Re-execution  of  lost  deeds. 

§  332.  Deeds — Defined  and  distinguished.  The  operative 
instrument  whereby  the  transmissal  of  estate  and  devolution 
of  title  is  effected  is  generally  termed  a  deed — a  name  of  very 
ancient  origin  and  extensive  signification.  It  applies  to  the 
conveyance  of  every  species  of  property,  and  in  its  widest 
sense  includes  every  instrument  under  seal  containing  a  con- 
tract or  agreement  which  has  been  delivered  by  the  party  to 
be  bound  and  accepted  by  the  obligee  or  covenantee. 

Originally  deeds  of  land  were  complicated  in  form/  highly 
technical,  and  very  verbose,  but  modern  conveyancing  has 


1  The  elementary  writers  classify 
common-law  deeds  as  follows:  Five 
original  conveyances,  to  wit:  Feoff- 
ment, Gift,  Rent,  Lease,  Exchange 
and  Partition;  five  derivative  con- 
veyances, to  wit:  Release,  Confir- 
mation,    Surrender,     Assignment 


and  Defeasance;  and  five  convey- 
ances derived  from  the  statute  of 
uses,  to  wit:  Covenant  to  stand 
seized  to  uses.  Bargain  and  sale, 
Lease  and  release.  Deed  to  lead  or 
declare  the  uses  of  other  more 
direct  conveyances,  and   Deeds  of 


396 


THE    MEDIUM    OF    TRANSFER. 


397 


reduced  them  to  very  siiuplc  I'orins,  while  the  liberal  eou- 
sti'uction  of  courts,  together  with  radical  statutory  changes, 
have  stripped  them  of  many  of  their  technical  features. 

According  to  the  earlier  cases,  as  well  as  many  later  con- 
firmatory authorities,  deeds  to  be  valid  and  ellectual  must  be 
in  writing,  and  upon  parchment  or  paper;  must  be  between 
parties  competent  to  give  and  receive  title;  must  be  freely 
made,  and  completely  written  before  delivery. 

Anciently  a  distinction  was  made  between  deeds  of  feoff- 
ment^ and  deeds  of  grant,^  but  this  distinction  no  longer  has 
any  practical  existence;  and,  generally  sjieaking,  all  dtH'ds 
DOW  in  common  use  are  deeds  of  grant. 

§  333.  Forms  of  conveyance.  All  of  the  different  kinds  of 
deeds  now  in  common  use  are  but  variations  of  two  original 
forms  which  had  their  origin  in  England  and  have  been  trans- 
mitted to  us  with  the  rest  of  our  inheritance  of  the  common 
law.  These  forms  are  known  respectively  as  deeds-poll  and 
indentures,  or  deeds  inter  partes.  The  former  was  used  only 
where  the  instrument  was  the  sole  act  of  the  grantor,  and 


revocation  of  uses.  Willard,  Con- 
veyancing, 419;  3  Wash.  Real  Prop, 
eh.  5. 

1!  A  feoffment  originally  meant 
the  gift  of  a  feud,  but,  since  the 
abolition  of  feudal  tenures  in  Eng- 
land, signifies  the  conveyance  of  an 
estate  in  fee-simple.  Livery  of  seizin 
was  the  distinguishing  feature  of 
feoffment,  which  in  the  United 
States  is  unknown;  execution,  de- 
livery and  registration  being  suffi- 
cient to  pass  title, although  the  pos- 
session remains  unchanged.  Livery 
of  seizin,  as  defined  by  the  ancient 
writers,  is  either  in  deed  or  in  law. 
The  former  is  where  the  parties 
go  upon  the  land,  and  the  feoffor, 
by  some  symbolical  act,  as  the  de- 
livery of  a  twig,  turf,  or  latch  of 
a  door,  or  even  by  express  words 
without  any  act.  gives  possession 
to  the  feoffee.  Mere  delivery  of  a 
deed  on  the  land  is  not  sufficient. 


unless  it  be  made  in  the  name  of 
seizin  of  all  the  lands  contained 
therein.  If  a  lessee  is  in  posses- 
sion his  consent  is  necessary  to 
livery.  Livery  in  law  is  where  the 
parties  are  not  upon,  but  only  in 
sight  of,  the  land;  and  the  feoffor 
pointing  it  out,  gives  it  to  the 
feoffee,  and  authorizes  him  to  take 
possession.  This,  however,  is  a 
mere  license  or  authority,  which 
must  be  consummated  by  actual 
entry;  and  if  either  of  the  parties 
die  before  entry  the  transfer  does 
not  take  effect.  But  if  the  feoffee 
dare  not  enter  for  fear  of  his  life, 
a  claim  as  near  the  land  as  possible 
will  be  sufficient.  Co.  Lit.  48  b; 
2  Hill.  Abridg.  307. 

3  A  grant  at  common  law  is  the 
conveyance  of  incorporeal  heredita- 
ments, such  as  rents,  commons, 
etc.,  which  are  said  to  lie  in  grant 
and  to  pass  only  by  deed. 


398  THE    MEDIUM    OF    TRANSFER. 

where  no  reciprocal  duties  or  obli<»ations  were  imposed  upon 
the  other  party;  the  hitter,  on  the  other  hand,  was  employed 
in  cases  where  there  were  mutual  transfers  or  covenants;  and 
while  the  former  consisted  onl}'  of  one  instrument,  signed 
by  the  grantor  and  delivered  to  the  grantee,  the  latter  con- 
sisted of  two  or  more  parts,  executed  by  all  of  the  parties,  and 
interchangeably  delivered  one  to  the  other.  The  name  inden- 
ture is  said  to  have  been  derived  from  the  practice  of  writing 
both  parts  of  the  agreement  upon  one  parchment,  with  certain 
letters  between  them,  and  then  cutting  the  parts  asunder  in 
acute  angles.** 

Although  the  forms  have  been  retained  the  practical  dis- 
tinction between  deeds-poll  and  indentures  has  ceased  to 
exist ;  and,  while  indenture  is  the  proper  and  customary  form 
for  deeds  inter  partes,  it  is  not  uncommon  to  find  deeds-poll 
in  fact  that  employ  the  formula  of  indentures.^ 

Much  formality  was  formerly  employed  in  framing  a  deed, 
which  for  the  sake  of  convenience  was  divided  into  a  number 
of  distinct  parts ;^  but  custom  has  long  since  reduced  the 
phrasing  of  these  parts  to  comparatively  brief  clauses,  while 
the  legislatures  in  most  of  the  states  have  practically  abro- 
gated all  of  the  ancient  formal  divisions. 

4  See  2  Hill.  Abridg.  280;  2  Shars.  6  The  formal  parts  of  a  common- 
Black,  Com.  294.    Where  a  question    law  deed  are  as  follows: 

arose  whether  a  certain  ancient  The  premises,  which  consists  of 
transfer  was  a  deed  or  an  author-  the  introductory  part,  including 
ized  transfer  upon  the  town  books,  the  date  (although  this  is  some- 
it  was  held  that  the  fact  of  its  times  placed  at  the  end),  the  par- 
purporting  to  be  an  indenture  (as  ties,  the  consideration  recitals,  the 
well  as  to  be  signed,  sealed  and  grant,  the  description,  and  excep- 
delivered)  proved  it  to  be  a  deed,  tion,  if  any. 
Merwin  v.  Camp,  3  Conn.  41.  The   hahendum,   which   declares 

5  The  indenture  is  the  form  of  the  estate  or  interest  granted,  al- 
conveyance  in  common  use  in  a  though  this  may  also  be  done  in 
majority  of  the  states,  while  the  the  premises. 

use  of  the  deed-poll  is  mainly  con-  The   tenendum,  which  accompa- 

fined  to  the  states  of  Alabama,  Ar-  nies  the  hahendum,  and  expresses 

kansas,  Connecticut,  Iowa,  Maine,  the  tenure  of  the  estate. 

Massachusetts,       Nebraska,      New  The   reddendum,  or   reservation 

Hampshire,  North  Carolina,  Ohio,  to  the  grantor  of  some  new  thing 

Oregon,  Rhode  Island.  South  Caro-  in  the  land. 

lina,     Texas     and     Vermont.     See  The    conditions,    the    covenants 

Jones'  Forms  Conv.  260.  and    the    conclusion,    reciting    the 


THE    MEDIUM    OF    TRANSFER.  399 

§  334.  Deeds  of  bargain  and  sale.  The  modes  of  couvey- 
ance  now  most  prevalml  in  the  United  States  are  those 
derived  from  the  Enj^lish  deed , of  barj^ain  and  wak'  under  the 
statute  of  u.ses,^  A  bargain  and  saU*  was  originally  a  mere 
oral  agreement  for  the  conveyance  of  land  for  a  valuable  con- 
sideration, in  consefjuence  of  which  a  use  arose  to  the  bar- 
gainee. But  to  check  the  multiplication  of  secret  conveyances, 
an  act  was  i)as8ed  soon  after  the  statute  of  uses  which 
retiuired  all  conveyances  by  way  of  bargain  and  sale  to  be 
made  in  writing,  indented  and  sealed,  and,  if  it  was  of  a  free- 
hold estate,  to  be  enrolled  in  one  of  the  courts  of  record. 

No  livery  of  seizin  was  necessary  to  a  bargain  and  sale  to 
make  the  deed  effectual,  the  statute  executing  the  use  and 
thereby  transferring  the  possession  to  the  legal  title  without 
entry  or  other  act.*^ 

§  335.  Warranty  deeds.  The  most  familiar  form  of  convey- 
ance known  to  our  law  is  the  deed  of  bargain  and  sale,  tech- 
nically called  a  warranty  deed.  The  legal  import  of  a  deed 
of  this  character  is  that  of  absolute  conveyance  and  that 
there  is  no  resulting  trust  in  the  grantor,  who  is  estopped 
from  ever  after  denying  its  execution  for  the  uses  and  pur- 
poses mentioned  in  it,  while  its  name  is  derived  from  the  per- 
sonal covenants  which  follow  the  habendum. 

execution  and  the  date,  either  ex-  made  to  one  person  to  the  use  of 

pressly  or  by  reference  to  the  be-  another. 

ginning.  s  The   statute   of   27   Hen.   VUI., 

"  In     England     there     are     two  called  the  statute  of  uses,  recites 

classes  of  conveyances,  which  de>  that    by    the    common    law    lands 

rive     their     operation     from     the  could   not  be  passed  by  will,  but 

statute    of    uses.      The    first   class  only  by  livery  of  seizin;   but  that 

consists  of   those   which   create  a  divers    subtle   practices   had    been 

use  alone,  without  any  transmuta-  introduced  in  the  form  of  fraudu- 

tion  of  possession  under  the  com-  lent  conveyances    and    assurances 

mon  law.     The  second   class   con-  and  of  last  wills,  whereby    heirs 

sists   of   those  conveyances   which  were    disinherited,    lords   deprived 

transfer  the  land  as  by  a  common-  of  their  dues,  husbands  and  wive.s 

law    assurance,    and    in    addition  of  curtesy  and   dower,  and  perju- 

thereto  raise  or  declare  a  use  upon  ries  committed.     The  statute  then 

the    legal    estate    vested     in    the  proceeds  to  enact  that,  where  any 

grantee.    To  the  former  class  be-  person  was  or  should  be  seized  of 

long    a    bargain    and    sale,    and    a  any    honors,    manors,    lands,    tene- 

covenant  to  stand  seized  to  uses;  ments.   rents,   services,    reversions, 

to  the  latter,  a  feoffment  and  a  fine  remainders     or     other     heredita- 


400  THE    MEDIUM    OF    TRANSFER. 

The  operative  words  of  conveyance  in  this  class  of  deeds  are 
"grant,  bargain  and  sell,"  and  these  words  in  many  states 
are  declared  to  be  covenants  of  seizin,  freedom  from  incum- 
brances and  quiet  enjoyment,  unless  their  statutory  effect  is 
rendered  nugatory  or  limited  by  express  words  contained  in 
such  deed.-'  It  is  still  a  common  practice  for  the  conveyancer 
to  insert  in  warranty  deeds,  as  well  as  in  other  classes  of  con- 
veyances, all  the  operative  terms  used  in  transferring  lands; 
as,  "grant,  bargain,  sell,  remise,  release,  alien,  convey  and 
confirm,"  though  their  presence,  save  where  they  imply  cove- 
nants, is  no  longer  necessary.  This  was  formerly  done  that 
the  instrument  might  take  effect  in  one  way  if  not  in  another, 
and  in  such  case  the  party  recc^iving  the  deed  had  his  election 
which  way  to  take  it.  Thus,  according  to  the  words  used,  he 
might  claim  either  by  grant,  feoffment,  gift,  lease,  release, 
confirmation  or  surrender.  The  majority  of  the  foregoing 
words  of  grant  are  now  superfluous,  except  that  in  a  few 
states  the  words  "grant,  bargain  and  sell"  must,  under  the 
statute,  be  construed  as  express  or  implied  covenants  for 
seizin,  against  incumbrances,  etc.;^^  yet  the  rule  that  the  law 
of  the  state  where  the  land  lies  governs  the  interpretation  of 
the  deed  does  not  warrant  the  implication  of  personal  cov- 
enants not  authorized  by  the  law  of  the  state  where  the  deed 
was  made.  The  question  whether  the  words  shall  import 
covenants  must  be  decided  by  the  law  of  the  latter  state.^^  It 
must  also  be  understood  that  some  words  evidencing  an  inten- 
tion to  convey  must  appear;  but  the  conveyancer  has  a  choice 
of  a  number,  and  the  word  "convey,"  which  is  most  in  use, 
fully  expresses  the  intent,  and  is  effectual  for  all  purposes.^^ 

§  336.  ftuitclaim  deeds.  There  is  in  common  use  in  the 
United  States  a  species  of  conveyance  derived  from  the  deed 

ments   to   the   use,   confidence    or  them,  the  latter  alone  should  have 
trust  of  any  person  or  body  politic,  the    seizin    and    possession.      The 
the  latter    should   have  the   legal  statute  has  been  substantially  re- 
seizin    and    possession,   nominally  enacted  in  many  states. 
given   to   the   former,    and    corre-  o  Finley  v.  Steele,  23  111.  56. 
sponding  to  the  use,  trust  and  con-  lo  Brodie    v.   Watkins,   31    Ark. 
fidence     held     previously    to     the  319;  Finley  v.  Steele,  23  111.  56. 
statute  in   lands  so  limited;    and,  n  Bethel  v.  Bethel,  54  Ind.  428. 
where  lands  were  limited  to  sev-  12  An  extremely  simple  form  of 
eral  persons  to  the  use  of  a  part  of  a  deed  in  fee  is  given  in  4  Kent, 


THE    MEDIUM    OF    TRANSFER.  401 

of  bargain  and  sale  under  the  statute  of  usi'S,  but  bearing  a 
strong  aflinity  to  the  old  common-law  deed  of  release,  called  a 
quitclaim.  Its  import  is  a  conveyance  or  release  of  all  present 
interest  in  the  grantor;  but,  unlike  the  common-law  release, 
which  was  only  ellectual  in  favor  of  some  i)ersou  in  posses- 
sion, or  who  claimed  or  had  some  interest  in  the  land,  it  is 
equally  available  as  a  mode  of  conveying  an  independent  title, 
and  for  all  practical  purposes  is  regarded  as  an  original  con- 
veyance. A  quitclaim  deed  is  as  effectual  for  transferring  the 
title  to  real  estate  as  a  deed  of  bargain  and  sale,  and  jtasses 
to  the  grantee  all  the  present  interest  or  estate  of  the  grantor, 
together  with  the  covenants  running  with  the  land,  unless 
there  be  special  words  limiting  and  restricting  the  conveyance. 
But  while  a  quitclaim  deed  is  as  effectual  to  pass  title  as  a 
deed  of  bargain  and  sale,  still,  like  all  other  contracts,  it  must 
be  expounded  and  enforced  according  to  the  intention  of  the 
parties  as  gathered  from  the  instrument;  and  if  the  words 
used  indicate  a  clear  intention  to  pass  only  such  land  or  inter- 
ests as  the  grantor  then  owns,  lands  embraced  in  a  prior  valid 
deed  have  been  held  to  be  reserved  from  its  operation,  even 
though  such  prior  deed  remains  unrecorded. 

The  authorities  in  respect  to  the  operation  and  effin-t  of 
quitclaim  deeds  are  conflicting,  the  obsolete  doctrines  of  the 
old  common  law  release  being  still  retained  in  some  measure 
in  a  number  of  states.  The  tendency  of  the  decisions,  how- 
ever, is,  that  a  quitclaim  is  not  merely  a  release,  but  a  sub- 
stantive form  of  conveyance,  and  that  a  purchaser  thereunder, 
who  takes  without  notice  of  latent  equities  is  not  distinguish- 
able from  one  who  takes  under  a  deed  of  bargain  and  sale.^^ 

§  337.  Release.  The  term  ^'release,"  in  its  popular  and  lim- 
ited signilication,  is  used  to  denote  the  instrument  whereby 
the  interest  conveyed  by  a  mortgage  is  reconveyed  to  the 
owner  of  the  fee,  and  it  is  also  used  generally  to  designate 

Com.    461;    and     see    Hutchins   v.  Merrill  v.  Hutchinson.  45  Kan.  59; 

Carleton.  19  N.  H.  487;    Bridge  v.  Brown  v.  Banner  Coal  Co.  97   111. 

Wellington,  1  Mass.  219.  214;   but  see  contra,  Peters  v.  Car- 

i.iWilhelm  v.  Wilken.  149  N.  Y.  tier,  80  Mich.  124;  Smith  v.  Bank. 

447;    Graff   v.    Middleton.    43    Cal.  21    Ala.    125;    Richardson   v.    Levi. 

341;    Chapman   v.    Sims,    53    Miss.  67   Tex.    359;    Steele   v.   Bank,   79 

154;  Willingham  v.  Hardin.  75  Mo.  Iowa  339. 
429;  Cutler  v.  James,  64  Wis.  173; 
26 


402  THE    MEDIUM    OF    TRANSFER. 

the  conveyance  of  a  right  of  anj  kind  to  a  person  in  posses- 
sion. In  England  it  obtains  in  a  fourfold  form,  and  is  one  of 
the  most  important  of  the  common-law  forms  of  conveyance. 
In  the  United  States  the  technical  principles  relating  to  deeds 
of  this  character  are  wholly  or  in  a  great  measure  inapplica- 
ble, while  the  conveyance  which  corresponds  to  a  release  at 
common  law  is  the  popular  quitclaim  deed — the  operative 
words  of  conveyance  being  the  same  in  both  deeds.  Where  a 
deed  remising  and  releasing  premises  contains  a  covenant  of 
warranty  of  title,  either  general  or  simply  as  against  the 
claims  of  all  persons  claiming  under  the  grantor  only,  and 
l)articularly  if  the  "habendum  be  to  the  grantee,  his  heirs,  etc., 
it  will  not  be  a  simple  release,  but  a  conveyance  of  the  fee; 
and  a  title  subsequently  acquired  by  the  grantor  will  inure  to 
the  grantee  unless  it  is  derived  from  sale  under  an  incum- 
brance assumed  by  the  grantee.^^ 

§  338.  Confirmation.  The  term  ^'confirmation"  is  used  to 
designate  that  species  of  conveyance  whereby  an  existing 
right  or  voidable  estate  is  made  sure  and  unavoidable  or 
where  a  particular  interest  is  increased.  The  appropriate 
technical  words  of  confirmation  are  "ratify,  approve  and  con- 
fii-m,"  but  "grant  and  convey"  or  similar  terms  will  have  the 
same  effect.  Deeds  of  confirmation  are  not  in  general  use,  as  a 
"quitclaim"  is  effective  for  almost  every  purpose  which  might 
be  accomplished  by  the  former.    Frequently,  however,  recitals 

14  People  ex  rel.  Weber  v.  Herbel,  operating  by  way  of  enlargement. 
96  111.  384.  There  is  a  mode  of  After  the  statute  of  uses,  and  the 
conveyance  operating  in  part  under  subsequent  statute  requiring  en- 
the  statutes  of  uses  which  at  one  rollment  of  deeds  of  bargain  and 
time  was  often  recognized  in  the  sale,  it  became  an  object  to  trans- 
United  States  and  is  said  to  be  the  f  er  the  use  in  land  by  some  method 
common  mode  of  conveyance  in  not  requiring  the  publicity  of  such 
England.  This  species  of  convey-  enrollment  or  of  actual  possession, 
ance  is  called  a  lease  and  release;  The  latter  statute  being  held  in- 
and  while  it  seems  to  have  been  applicable  to  conveyances  for 
employed  in  this  country  during  years,  this  method  was  found  in 
the  latter  part  of  the  last  century  making  a  bargain  and  sale  for  a 
it  is  now  unknown,  having  been  year,  and  subsequently  a  common- 
superseded  by  the  deed  of  bargain  law  release  enlarging  the  estate  of 
and  sale.  A  lease  and  release  Is  the  bargainee  into  a  fee.  The  re- 
in fact  a  bargain  and  sale  for  a  lease  would  take  effect  though  the 
year,  and    a    common-law    release  bargainee  never  had  actual  posses- 


THE    MEDIUM    OF    TRANSFER.  403 

in  deeds  show  them  to  be  given  in  ratification  or  confirmation 
of  previous  acts  and  to  correct  errors,  irreguhirities  or  infirm- 
ities in  former  deeds,  in  which  event  they  take  effect  by  rela- 
tion as  of  the  date  of  the  former  act  or  deed,  and  tlie  con- 
firmatory words  become  material  to  inteiTiret  and  explain  the 
undisclosed  intention  or  correct  the  irre<xularity  of  the  former 
deed, 

v5  339.  Surrender.  A  surrender  is  defined  as  the  yielding 
up  of  an  estate  for  life  or  years  to  him  who  has  an  immediate 
estate  in  reversion  or  remainder,  the  lesser  estate  being 
merged  in  the  greater  by  mutual  agreement;  and  the  term  is 
api»li('d  both  to  (he  act  and  th(»  instrument  by  which  it  is 
accomplished.  It  is  directly  opposite  in  its  nature  to  a  release, 
which  technically  operates  by  the  greater  estate  descending 
upon  the  lesser.  The  operative  words  of  a  conveyance  of  this 
nature  are  "surrender  and  yield  up,"  but  any  form  of  words 
that  indicates  the  intention  of  the  parties  will  serve  the  same 
purpose;  while  a  surrender  is  always  implied  when  an  estate 
incompatible  with  the  existing  estate  is  accepted.  Though  the 
books  on  conveyancing  still  continue  to  give  ample  forms  for 
deeds  of  surnrnder,  the  quitclaim  deed  in  common  use  has 
taken  its  place  for  most  purposes;  but  it  would  seem  that  this 
is  still  the  proper  instrument  for  the  relinquishment  of  lease- 
hold interests,  dower,  etc.^^ 

§  340.  Assignment.  An  assignment  is  a  mode  of  convey- 
ance ai)plicable  to  any  estate  in  lands  whatever;  but  the  terra 
is  usually  employed  to  express  the  transfer  of  an  equitable 
estate  or  a  chattel  interest.  The  operative  words  of  convey- 
ance are  "assign,  transfer  and  set  over,"  but  any  other  words 
evincing  an  intention  to  make  a  complete  transfer  are  suffi- 
cient. 

A  new  meaning  has  within  very  recent  years  been  given  to 

sion,   because  the  statute  of  uses  livery.     But  things  lying  in  grant 

without  possession  vested  the  ac-  could  not,  as  a  deed  was  necessary 

tual  estate  in  him,  upon  which  the  to  create  them.       And  even  such 

release  could  operate.    This  point,  things,  lying  in  grant,  as  were  not 

though  once  doubted,  was  at  length  created    by   deed,   were  subject   to 

fully  settled.     2  Hill.  Abridg.  330;  the  same  rule;   as,  for  instance,  a 

4  Cruise,  Dig.  103.  remainder  for  life  after  a  lease  for 

15  At  common   law  lands  might  life.     So  an  estate  by  the  curtesy 

be  surrendered     without    dcod   or  or  in  dowor.     4  Cruise,  Dig.  79, 


404  THE    MEDIUM    OF    TRANSFER. 

this  word,  as  applied  to  sales  of  real  property,  by  the  action 
of  a  few  courts  of  last  resort.  While  the  tendency  of  courts 
has  long  been  to  discourage  technical  rules  of  construction, 
when  such  rules  tend  to  defeat  the  manifest  intention  of  the 
parties,  yet  the  cardinal  principles  which  have  always 
obtained  have  not  heretofore  been  disturbed.  Thus,  a  grant, 
to  be  effective  as  a  conveyance  of  land,  must,  by  apt  lan- 
guage, describe  the  parties  and  the  thing  granted  and  the 
description  so  given  should  be  complete  in  itself  and  of  such  a 
character  as  to  preclude  a  resort  to  extrinsic  evidence.  The 
rights  of  property  imperatively  demand  a  strict  adhesion  to 
these  principles.  A  "liberal  construction"  does  not  justify 
the  judicial  interpolation  of  words.  For  this  reason  it  would 
seem  to  be  in  consonance  with  sound  principles  of  law  that 
an  assignment  endorsed  upon  a  deed  should  be  inoperative 
to  effect  a  conveyance  of  the  land  therein  described  or  trans- 
fer title.i*'  A  contrary  opinion  has  been  reached,  however,  in 
several  cases,  the  effect  of  which,  if  generally  followed,  may  be 
to  overturn  much  of  the  established  law  relating  to  deeds 
and  the  methods  of  legal  conveyancing.  Thus,  it  has  been 
held  that  where  a  grantee  in  a  deed  places  upon  the  back  of 
it  an  assignment  to  a  third  person,  for  value,  of  all  his  title 
and  interest  *'in  and  to  the  within  deed"  and  delivers  same, 
such  assignment  will  be  effective  as  a  transfer  of  the  legal 
title  to  the  land  in  such  deed  described.^''^ 

The  controlling  motive  which  seems  to  have  induced  the 
foregoing  ruling  was  the  familiar  doctrine  that  it  is  not  essen- 
tial that  a  deed  should  be  couched  in  any  precise  form  of 
words  and  that  courts  should  give  effect  to  the  intention  of  the 
parties.  But,  while  equity,  upon  a  proper  showing,  would 
probably  treat  such  an  endorsement  as  an  executory  contract 
to  convey,  it  is  doing  violence  to  all  the  rules  of  conveyanc- 
ing, as  well  as  setting  a  dangerous  precedent  in  loose  meth- 
ods, to  call  such  a  writing  a  deed. 

§  341.  Defeasance.  A  defeasance  has  been  defined  as  a 
collateral  deed,  made  at  the  same  time  with  a  feoffment  or 
grant,   containing   certain   conditions  upon    performance    of 

iBTunstall  V.  Cobb,  109  N.  C.  316;  "See  Harlowe  v.  Hudgins,  84 
Arms  V.  Burt,  1  Vt.  303;  Lessee  of  Tex.  107;  Lemon  v.  Graham,  131 
Bently  v.  Deforest,  2  Ohio  221.  Pa.  St.  447. 


THE    MEDIUM    OF    TRANSFER.  405 

which  the  cstalc  thereby  created  may  be  defeated.^^  It  differ.s 
from  a  condition  in  nothin};  but  that  the  latter  makes  a  part 
of  the  conveyance  itself,  while  the  former  constitutes  a  sep- 
arate instrument.  It  was  formerly  much  used  in  connection 
with  mortgages,  but  at  present,  and  in  the  United  States,  it 
is  practically  obsolete. 

§  342.  Covenant  to  stand  seized.  There  is  another  form  of 
conveyance,  operating  under  the  statute  of  uses,  called  a  cov- 
enant to  stand  seized  to  uses.  Formerly,  if  one  jx-rson  cove- 
nanted for  himself  and  his  heirs  that  for  a  certain  considera- 
tion another  should  have  his  land,  though  the  land  did  not 
pass  for  want  of  livery,  yet  the  covenantee  gained  the  use; 
and  after  the  enactment  of  the  statute  of  uses  the  use  thus 
acquired  became  executed  by  the  statute  and  the  party  to  be 
benetited  at  once  placed  in  possession  of  the  land.  This  form 
of  deed  seems  to  have  been  a  very  peculiar  species  of  con- 
veyance, confined  entirely  to  family  connections  and  founded 
on  the  tender  consideration  of  blood  or  marriage ;^^  but  this 
limitation,  while  undoubtedly  expressing  the  English  law  on 
the  subject,  has  been  denied  in  some  of  the  later  American 
cases,  which,  while  admitting  that  the  law  recognizes  the 
natural  affections,  and  the  mutual  obligation  of  support  which 
springs  from  the  family  relations,  as  affording  a  good  and 
meritorious  consideration  for  a  deed  of  conveyance,  yet  deny 
that  any  form  of  conveyance  can  be  so  consecrated  by  a  mere 
sentiment  that  it  cannot  be  permitted  to  operate  between  any 
])arties  other  than  relatives,  nor  upon  a  pecuniary  considera- 
tion. Upon  every  principle  of  the  law  of  contracts,  money  is 
now  considered  as  a  sufTicient  consideration  for  the  supjtort  of 
any  contract  whatever,  so  far  as  its  validity  depends  upon  a 
consideration  as  such;  and  it  may  be  safely  asserted  that  the 
distinction  between  a  deed  of  bargain  and  sale  and  a  covenant 
to  stand  seized,  so  far  as  the  same  may  depend  upon  the 
nature  of  the  consideration,  does  not  at  the  present  time  exist 
in  this  country.-^* 

18  4  Cruise.  Dig.  82.  Piclt.  (Mass.)  111.     If  a  father  bar- 
's See     Jackson     v.    Sebring,    16  gain  and  sell  land,  witli  warranty 
Johns.     (N.   Y.)     515;     French   v.  to  his  child  or  grandchild,  to  hold 
French,  15  N.  H.  381.  from  the  grantor's  death,  the  la-"- 
20  See    Trafton    v.    Hawes,    102  will  presume  a  good  consideration 
Mass.  533;    Parker    v.    Nichols,  7  in   addition   to   the   valuable   con- 


■i06  THE    MEDIUM    OF    TRANSFER. 

Nor  can  a  mere  covenant  to  convey  now  be  said  to  operate 
to  transfer  an  estate;  and  although,  for  certain  purposes, 
courts  of  equit.y  will  regard  a  covenantee  as  possessed  of  an 
equitable  interest  in  the  land,  yet  at  law  such  a  covenant  can 
generally  have  no  higher  effect  than  a  personal  contract 
affording  a  foundation  for  damages  in  law  or  grounds  for 
relief  by  way  of  specific  enforcement  in  equity. 

But  while  conveyances  of  this  character  have  practically 
ceased  to  exist,  the  principle  and  rules  which  pertained  to 
them  have  to  some  extent  been  retained,  and  in  the  further- 
ance of  intention  courts  still  resort  to  them  to  give  effect  to 
deeds  which  by  reason  of  insufficiency  are  unable  to  operate 
in  other  ways.-^ 

§  343.  Imperfect  deed — Operation  and  effect.  The  rule  is 
strongly  established  in  equity  tliat  a  contract  evidenced  by  a 
writing  cannot  be  defeated  by  innocent  mistake  or  error;  and, 
in  pursuance  of  this  principle,  a  long  list  of  authorities  confirm 
the  doctrine  that  where  a  deed  is  insufficient  as  a  conversance 
it  may  still  have  effect  as  an  executory  contract  to  convey. 
Notwithstanding  a  deed  may  be  technically  defective,  yet,  if 
made  by  a  person  possessing  title,  it  will  still  be  valid  as 
between  the  parties,  so  as  to  bind  the  lands  conveyed  in  the 
hands  of  the  grantor,  his  heirs,  and  all  others  claiming  under 
him  by  operation  of  law,  as  well  as  subsequent  purchasers 
with  notice  ;-2  and  courts  of  equity  will  always  interfere  for 
the  relief  of  a  vendee  who  has  taken  by  a  defective  convey- 
ance, and  compel  a  proper  transfer.23 

The  rule  is  applied  in  all  cases  where  there  has  been  a 

sideration  expressed  in  the  deed,  seized,  especially  where  the  intent 
and  construe  it  a  covenant  of  the  is  unmistakable  from  th^  relation- 
grantor  to  stand  seized  to  his  own  ship  of  the  parties.  The  deed  is 
use  during  his  life,  and  after  his  not  invalidated  by  the  fact  that  its 
death  to  the  use  of  the  grantee,  terms  attempt  to  create  an  estate 
Wallis  V.  Wallis,  4  Mass.  135.  in  fee  in  futuro.    Kent  v.  Atlantic 

21  See  Exum.  v.  Canty,  34  Miss*  Delaine  Co.  8  R.  I.  305. 

569;  Horton  v.  Sledge,  29  Ala.  478.  22  Mastin  v.  Halley,  61  Mo.  199; 

A  quitclaim  deed  in  common  form,  Ross  v.  Worthington,  11  Minn.  442; 

except  that  the   habendum,  clause  Wadsworth   v.   Wendell,    5   Johns, 

provides  that  the  conveyance  shall  Ch.  (N.  Y.)  224. 

take  effect  from  and  after  the  day  2.{  Mastin  v.  Halley,  61  Mo.  199; 

of  the  grantor's  decease,  is  to  be  Conrad  v.  Schwamb,  53  Wis.  372; 

construed  as  a  covenant  to  stand  Jewell  v.  Harding,  72  Me.  126. 


THE    MEDIUM    OF    TRANSFER.  407 

casual  oiiii.s.sioii  by  aicidc-iit  or  Uiistake-  ul  some  tcclinical 
requirement  necessary  to  make  an  instrument  valid  or  effec- 
tual;-* and  even  where  a  deed,  duly  executed  and  otherwise 
complete,  fails  through  misdescription  to  convey  the  land 
intended,  it  may  still  be  treated  as  a  contract  to  convey  which 
equity  will  enforce.^^ 

g  344.  When  vendee  entitled  to  deed.  The  conditions  of 
sale  usually  jtrovide  for  the  time  and  uiauner  of  passing  title 
and  when  these  matters  are  regulated  by  express  agreement 
no  question  can  ordinarily  arise  with  resjjcct  to  same.  In  the 
absence  of  special  provisions  in  reference  thereto  the  gen- 
eral rule  would  seem  to  be  that  the  vendee  is  not  entitled  to 
conveyance  until  full  pa^Muent  of  the  purchase-money  has 
been  made.  In  such  case,  the  acts  of  payment  and  convey- 
ance being  mutual  and  dependent,  neither  party  is  in  default 
until  after  tender  or  demand.-''^ 

§  345.  Time  to  prepare  deed — Demand  for  same.  The  gen- 
eral rule  is  that  when  a  party  agrees  to  perform  an  act,  and  no 
time  is  specified  for  its  completion,  he  must  have  a  reasonable 
time  for  the  i)urpose;  and  to  be  put  in  default  the  opposite 
party  must  demand  its  performance.  In  pursuance  of  this 
rule  it  has  been  held  that  where  the  vendor  of  land  receives 
the  purchase  money  for  the  same  and  agrees  to  convey  it  to 
the  purchaser,  but  no  time  is  specified,  he  is  entitled  to  a  rea- 
sonable time  within  which  to  make  the  conveyance,  and  the 
purchaser  in  such  case  should  demand  a  deed;  and  the  vendor 
should  refuse  or  neglect  to  comply  with  the  demand  before 
the  purchaser  can  recover  back  the  money  i)aid  by  him  as  the 
consideration  of  the  conveyance.-' 

It  has  further  been  held  that  a  vendor  of  lands  who  has 
covenanted  to  convey  by  a  day  certain  is  not  in  default  until 
the  party  who  is  to  receive  the  conveyance,  being  entitled 

-*  An   instrument   purporting  to  Brinkley     v.     Bethel,     9     Heisk. 
convey  land,  but  which  by  mistake  (Tenn.)    789;    McCarley  v.   Super- 
has  only  one  witness,  and   is   not  visors,  58  Miss.  486. 
sealed,  is  in  equity  a  contract  to  -"■  Conrad   v.   Schwamb,   53"  Wis. 
convey  the  land  described,  and  the  372. 

consideration     expressed    will     be  -'•  Easton  v.  Montgomery,  90  Cal. 

presumed  to  be  the  true  consldera-  307. 

tion  for  the  conveyance.    Dreutzer  -"  Kime  v.  Kime,  41  111.  397. 
V.  Lawrence,  58  Wis.  594.     And  see 


408  THE   MEDIUM   OF   TRANSFER. 

thereto,  has  demanded  it,  aud,  having  wailed  a  reasonable 
time  to  have  it  drawn  and  executed,  has  made  a  second 
demand.2*^  It  seems,  however,  that  the  purchaser  may  avoid 
the  necessity  of  a  second  demand  by  tendering  on  the  first 
demand  a  deed  prepared  for  execution;-'*  nor  will  a  second 
demand  be  necessary  if  on  the  first  demand  the  vendor  refuse 
to  execute  the  deed.'^o  So,  where  there  are  several  persons 
jointly  bound  to  execute  a  deed,  and  the  same  is  demanded  of 
one  of  them  aud  refused,  no  demand  of  the  others  will  be  nec- 
essary— the  refusal  of  one  subjects  all  to  an  action.^^ 

§  346.  Vendee's  right  to  inspect  deed.  It  would  seem  rea- 
sonable that,  under  the  practice  which  prevails  in  this  coun- 
try whereby  the  vendor  and  not  the  vendee  prepares  and 
tenders  the  deed,  the  vendee  should  have  suitable  opportunity 
of  examining  the  same  before  he  pays  the  purchase  money, 
and  that  the  vendor  should,  upon  demand  made,  exhibit  such 
deed  that  the  vendee  may  found  any  proper  objections  to  its 
form  or  substance.  Ordinarily,  however,  the  delivery  of  the 
deed  and  the  payment  of  the  purchase  money  are  contempo- 
raneous acts;  and  while  inspection  may  follow  at  such  a  time 
as  an  incident,  it  does  not  appear,  unless  the  contract  so  pro- 
vides, that  a  vendee  has  the  right  to  insist  upon  an  inspection 
of  his  vendor's  deed  before  paying  the  purchase  money  agreed 
upon.^2  But  where  the  purchaser  offers  to  make  payment  on 
inspection  of  the  deed,  provided  it  shall  prove  satisfactory, 
and  the  vendor  refuses  to  allow  inspection,  though  stating 
that  he  has  the  same  prepared  and  ready  for  delivery  on  pay- 
ment, this  will  not  be  regarded  as  a  sufficient  tender  of  the 
deed,  or  a  manifestation  of  such  a  willingness  to  comply  with 

28  Connelly   v.    Pierce,    7    Wend,  the  money  necessary,  offered  to  pay 

(N.  Y.)    129.  it,  if,  upon  inspection  of  the  deed, 

20  Connelly   v.    Pierce,    7    Wend,  it  should  prove  satisfactory,  which 

(N.  Y.)  129.  inspection  the  vendor  refused,  but 

30  Blood  V.  Goodrich,  9  Wend.  68.  offered  to  deliver  the  same  on  de- 

31  Blood  v.  Goodrich,  9  Wend.  68.  posit  of  the  money  with  his  banker, 

32  Under  a  contract  for  the  sale  which  the  assignee  refused  to  do. 
and  conveyance  of  land,  the  pur-  Held,  that  neither  party  was  re- 
chaser  was  to  make  payment  on  or  lieved  from  his  obligation  under 
before  a  day  named,  when  the  ven-  the  contract  by  what  then  trans- 
dor  was  to  deliver  conveyance.  On  pired.  Papin  v.  Goodrich,  103  111. 
the    day    preceding    this    day,    the  86. 

assignee  of  the  purchaser,  having 


THE    MEDIUM    OF    TRANSFER.  40D 

his  contract  as  will  autlioiizc  him  tht'ii,  on  the  rcfuHul  of  the 
purchaser  to  perform,  to  tile  a  bill  to  cancel  the  contract.^^ 

Possibly  the  proof  of  a  local  custom  to  afford  purchasers  an 
opportunity  to  inspect  the  deed  before  rtMjuirin^  tlicm  to  make 
payment  might  be  shown  in  cases  similar  to  the  foregoing; 
but  in  order  to  do  this  there  should  also  be  evidence  to  prove 
that  the  custom  was  uniform,  long  established,  generally 
acquiesced  in,  and  so  well  known  as  to  induce  the  belief  that 
the  parties  contracted  with  reference  to  it;''*  but  unless  this  is 
also  shown  the  evidence  of  custom  should  be  excluded.  And 
the  attempt  to  show  such  a  custom  is  open  to  the  further 
objection  that,  unless  the  delivery  of  the  deed  is  made  a  i)rece- 
dent  act,  it  is  impossible  that  there  could  be  a  custom  to  allow 
a  party  to  inspect  a  deed  at  a  time  when  there  is  no  legal  duty 
to  have  such  deed  made  and  ready  for  delivery.^^  Thus,  where 
a  deed  is  to  be  delivered  and  possession  given  on  payment  of  a 
sum  certain,  the  pajment  of  the  consideration  must  precede 
the  right  of  the  purchaser  to  receive  a  deed.^*^ 

i5  347.  Vendor  not  required  to  take  deed  from  third  party. 
Where  one  party  agrees  to  convey  to  another  by  wai'ranty 
deed  a  certain  tract  of  land,  the  legal  title  to  which  is  vested 
in  a  third  person,  the  procuring  of  the  conveyance  of  the  laud 
by  such  third  person,  with  his  warranty  will  not  answer  its 
requirements;^"^  the  party  who  was  to  receive  the  deed  is  enti- 
tled to  have  the  personal  covenants  of  him  who  agreed  to  con- 
vey as  a  further  security  for  his  title.^^ 

§  348.  When  contract  has  been  assigned.  When  a  vendee 
has  contracted  for  the  purchase  of  land  and  sold  it  to  another, 
the  latter  will  be  entitled  to  receive  from  the  first  vendor  the 
same  kind  of  deed  which  he  contracted  to  give  his  vendee.-''^ 

§  349.     Objections  to  deed.      It  is  the  duty  of  the  purchaser, 

3.t  Papin  V.  Goodrich,  103  111.  86.  Headley  v.  Shaw.  39  111.  354;  Rabb 

3>  Turner  v.  Dawson,  50  111.  85;  v.  Montgomery,  20  Johns.   (N.  Y.) 

and  see  §  117,  supra.  15. 

3r>  Papin  v.  Goodrich,  103  111.  86.  37  Hussey  v.  Roquemore,  27  Ala. 

In    this    case    the    purchaser    de-  281;  but  see  Dresel  v.  Jordan,  104 

manded  inspection  of  the  deed  on  Mass.  407. 

the  day  fixed  for  the  payment  of  -^^  Crabtree    v.   Levings.   53     111. 

purchase    money    and    delivery    of  526;  Rudd  v.  Savelli,  44  Ark.  145. 

deed.  39  Gibbs  v.  Blackwell.  37  111.  li)l. 

30  Terry  v.  George.  37  Miss.  539; 


410  THE    MEDIUM    OF    TRANSFER. 

upou  lender  of  deed,  to  luise  aud  urge  wluitever  objections  he 
may  have  either  as  to  form  or  substance;  and  although  the 
deed  tendered  by  the  vendor  may  not  conform  to  the  terms  of 
the  contract,  yet  if  the  vendee  makes  no  objection  to  the  same, 
but  merely  declares  his  inability  to  pay  for  the  land,  it  seems 
that  he  thereby  waives  all  objections  to  the  deed  and  cannot 
raise  the  objections  upon  a  suit  afterwards  brought,'^*^  It  has 
also  been  held  that  where  the  deed  presented  is  objectionable 
in  substance,  or  fails  to  conform  to  the  agreement,  the  vendee 
should  prepare  a  deed  and  present  it  to  the  vendor  for  execu- 
tion before  the  vendor  can  be  put  in  default.'*^ 

The  foregoing  principles  are  more  particularly  applicable 
to  a  purchaser  who  has  been  let  into  possession,  and  against 
such  the  rule  will  usually  be  strictly  enforced;  nor  can  a  pur- 
chaser who  has  had  possession  sustain  his  refusal  to  take  a 
deed  by  the  fact  that  it  was  not  tendered  punctually .^^  where 
a  purchaser  goes  into  possession  under  an  agreement  to  pur- 
chase, and  some  of  the  pa^Tnents  are  deferred,  the  title  papers 
remaining  in  escrow  until  the  payments  are  made,  after  an 
occupation  of  several  years,  knowledge  that  the  papers  are  in 
escrow,  and  payment  of  part  of  the  purchase  money  without 
o'bjection,  will  be  deemed  a  waiver  of  all  formal  exceptions  to 
the  regularity  of  the  papers."*^ 

Nor  do  the  foregoing  remarks  apply  exclusively  to  the 
vendee.     By  the  English  practice  the  duty  of  preparing  the 

*o  Moak  V.  Bryant,  51  Miss.  560.  consideration  did  not  appear,  the 

In  this  case  the  vendee  was  in  pos-  court  refused  to  set  aside  a  nonsuit 

session,   and  the   objections    were  which  had  been  ordered,  and  inti- 

raised  for  the  first  time  when  sued  mated   their  opinion   that,   to  put 

for  the  possession  of  the  land.  And  the  vendor  in  default,  the  vendee 

see  Kenniston  v.  Blakie,  121  Mass.  should  have  prepared  a  deed  con- 

552.  formable   to   the    agreement    and 

41  Where  a  vendor  of  real  estate,  presented  it  to  the  vendor  for  exe- 

who  was  under  a  contract  to  exe-  cution,    who,    on    refusal,    would 

cute  and  deliver  a  deed  by  a  day  have    been    liable    to    an    action, 

certain,  executed  and  tendered  a  Hackett  v.  Huson,  3  Wend.  (N.  Y.) 

deed  which  the  vendee  refused  to  249. 

accept,  on  the  allegation  that  the  42  Curran  v.  Rogers,  35  Mich.  221. 

true  consideration  of  the  convey-  43  Thayer  v.  Torrey,  37  N.  J.  L. 

ance  was  not  expressed  in  it;  and  339.     In  this  case  the  vendee  re- 

where,  from  the  evidence^produced  tained  possession  for  four    years 

on  the  trial,  the  true  sum  which  before  making  objection, 
ought  to  have  been  inserted  as  the 


THE    MEDIUM    OF    TRANSFER.  411 

(Iced  devolves  on  I  lie  vendee,  wlio  is  ie(|nire(l,  in  due  time,  io 
pivsi'iil  the  Himie  to  the  vendor  for  execntion.  This  cuHtoni 
does  not  and  never  has  prevaih'd  in  the  I'nited  Stales,  wliere 
the  tender  of  a  properly  execnted  deed  is  a  jKiit  of  the  oblif^a 
tiou  of  the  vendor-.  l»iil  it  would  Heeni  that  if  tlie  vendee, 
citlier  in  iiursiiance  of  the  a^reenient  or  aw  a  voluntary  act, 
a.ssnmeH  such  duty,  a  correspondinj;  duty  of  seaHonable  objec- 
tion thereto  rests  ui)on  the  vendor;  and  where,  in  pursuance 
of  an  aj^reenient,  the  vendee  tenders  for  execution  by  the 
vendor  a  ditVerent  deed  from  that  called  for  by  the  contract, 
the  vendor  must  make  his  objections,  if  he  has  any,  at  the  time 
of  presentation  or  within  a  reasonable  time  thereafter.  He 
cannot  be  i)ermitted  to  retain  the  proposed  deed  without 
objection,  or  reservation  of  the  right  to  object,  and  afterwards, 
when  sued  for  a  breach  of  contract,  set  u])  the  objection  for 
the  first  time  in  answer  to  the  action.^* 

A  failure  to  object  to  a  deed  when  tendered  cannot  be  said 
to  be  conclusive  on  the  question  of  waiver  of  objections,  how- 
ever; but  it  is  a  signiticant  circumstance  strongly  tending  to 
indicate  waiver,  and  when  taken  in  connection  with  other 
facts  may  have  an  important  bearing  upon  the  question  when 
presented.^^ 

The  obligation  of  the  vendee  cannot  be  enlarged  by  impli- 
cation, nor  can  he  be  made  to  assume  burdens  which  have  not 
been  distinctly  and  specitically  enumerated  in  the  contract. 
For  this  reason  a  tender  of  a  deed  reciting  that  the  grantee 
assumes  the  pa^^nent  of  a  mortgage  therein  described  is  not 
a  compliance  by  the  vendor  with  a  contract  that  the  convey- 
ance should  be  made  subject  to  the  incumbrance  of  tlie  mort- 
gage: nor  will  such  tender  relieve  the  vendor  from  his  obliga- 
tion under  the  contract.'*' 

§  350.  Duty  of  preparing  deed.  It  seems  that  in  England 
the  duty  of  preparing  and  presenting  the  deed  devolves  upon 
tlie  purchaser;"*"  and  this  fact  is  sometimes  cited  in  tin*  United 
States  as  an  excuse  for  negU'ct  or  delay  on  tlie  jtart  of  the 

•«<  Morgan  v.  Stearns,  40  Cal.  434.  449;    Kohner  v.  Higgins,  42  N.  Y. 

Compare    Dresel     v.    Jordan,     104  Sup.  Ct.  4. 

Mass.  407.  '■  1  Sug.  on  Vend.  3G6  (8th  Am. 

4'' Gault  V.  Van  Zile.  37  Mich.  22.  ed.)  and  cases  cited. 

<o  Mellon  V.  Webster,  5  Mo.  App. 


413  THE   MEDIUM   OF   TRANSPER. 

vendoi'."*^  It  may  be  safely  asserted,  however,  ihat  this  rule, 
if  indeed  it  ever  obtained,  has  long  since  been  reversed;  and 
in  most  if  not  all  of  the  states,  unless  there  has  been  some 
express  stipulation  to  the  contrary,  the  vendor  is  bound  to 
prepare  the  deed  at  his  own  expense  and  tender  the  same  to 
the  vendee  properly  executed.'*'^  Until  this  has  been  done,  or 
an  offer  of  the  same  made,  no  right  of  action  exists  against  the 
vendee,  unless  by  his  acts  or  conduct  the  vendor  has  been  dis- 
charged or  excused  from  the  perfoiTnance  of  the  duty.^*^ 

If  a  mortgage  is  to  be  given  back  by  the  jmrchaser  he  must 
prepare  and  execute  one  in  order  to  make  a  proper  tender 
when  demanding  a  conveyance.'*^ 

§  351.  What  method  of  conveyance  is  sufficient.  In  every 
contract  for  the  sale  of  lands,  whatever  may  be  the  language 
in  which  it  is  couched,  there  is  an  implied  undertaking  to  fur- 
nish a  marketable  title,  unless  such  an  obligation  is  expressly 
excluded  by  the  terms  of  the  agreement,^^  ^nd,  in  the  absence 
of  any  stipulation  as  to  the  kind  of  conveyance,  to  make  such 
a  deed  as  will  render  the  sale  effectual.'"*^  If  the  contract  calls 
for  a  specific  title  or  method  of  conveyance,  the  purchaser  may 
insist  upon  a  strict  performance,  and  cannot  be  compelled  to 
accept  any  other  or  different  title  or  medium  of  transfer,  not- 
withstanding such  proposed  substitutes  may  be  equally  as 
good.^^ 

But  under  the  legal  rules  of  construction  now  applied  to 
conveyances  of  land  and  estates  and  interests  therein,  the 
form  of  the  instrument  of  transfer  has  become  a  matter  of 
minor  importance.  The  technical  operative  words,  w'hether  of 
grant  or  limitation,  have  wholly,  or  in  a  large  measure,  lost 

48  Taylor  v.  Longwortli,  14  Pet.  Longworth,  14  Pet.  (U.  S.)  172; 
(U.  S.)    172.  Paul  V.  Brown,  9  Minn.  157. 

49  Tinney  v.  Ashley,  15  Pick.  so  Parker  v.  Parmlee,  20  Johns. 
(Mass.)  546;  Hill  v.  Hobart,  16  (N.  Y.)  130;  Hunt  v.  Livermore,  5 
Me.  164;  Connelly  v.  Pierce,  7  Pick.  (Mass.)  395;  Thomas  v. 
Wend.  (N.  Y.)  129;  Headley  v.  Lanier,  23  Ark.  639;  Davidson  v. 
Show,  39  111.  354;  Walling  v.  Kin-  Van  Pelt,  15  Wis.  341. 

nard,  10  Tex.  508;  Seely  v.  How-  si  Longfellow  v.  Moore,  102  111. 
ard,  13  Wis.  336  Winton  v.  Sher-    289. 

man,  20  Iowa,  295;  Arledge  v.  52  Holland  v.  Holmes,  14  Fla. 
Rooks,  22  Ark.  427;  Guthrie  v.  390;  Burwell  v.  Jackson,  9  N.Y.  544. 
Thompson,  1   Ore.  353;    Taylor  v.        53  Hoffman  v.  Fett,  39  Cal.  109. 

54  Page  V.  Greely,  75  111.  400. 


THE    MEDIUM    OF    TRANSFER.  413 

thoir  foiiMcr  ('lluncv;  ;iii(l  altluMi^h  it  is  si  ill  luccssary  U) 
effectuate  a  coiivcvaiHc  that  it  contain  apt  wordH  evincing  an 
intention  to  convey,"'"'  yet  every  i)art  of  the  instrument  nuiy  be 
resoiti'd  to  for  the  purpose  of  ascertaininj;  its  tiue  meaning;''" 
and  <j;enerally  any  writing;  that  sulliciently  identities  the  par- 
ties, describes  the  hind  and  acknowh-dj^es  a  sale  of  the  ven- 
dor's rights,  if  executed  in  conformity  to  hiw,  is  a  good  and 
valid  deed  of  bargain  and  sale/'^  The  attention  of  the  pur- 
chaser is  now  mainly  directed  to  the  condition  of  the  vendor's 
title,  and  if  this  is  perfect  in  the  person  proposing  the  same, 
the  vehicle  of  conveyance  does  not  so  much  matter.  An 
ordinary  quitclaim  is  fully  as  effectual  for  transferring  title 
as  a  technical  deed  of  bargain  and  sale,''^  and  will  pass  to  the 
grantee  all  the  present  estate  or  interest  of  the  grantor,'^^ 
together  \Cith  the  covenants  running  with  the  land,*'"  unless 
there  be  special  words  limiting  and  restricting  its  operation. 
Hence,  a  contract  to  convey  a  perfect  title  by  a  "good  and 
sufhcient"  deed  may  be  fully  performed  by  making  a  quitclaim 
deed;*'^  provided,  of  course,  that  such  deed  conveys  the  entire 
estate*'^  ^^d  vests  in  the  purchaser  an  indefeasible  title.*'^ 
Neither  the  implied  nor  expressed  covenants  add  anything  to 
the  title  or  in  any  way  enlarge  the  estate  granted  save  as  they 
may  affect  future  accjuisitions  by  way  of  estoppel,  and  they 
are  usually  inserted  only  for  the  purpose  of  personal  indem- 
nification; while  the  fact  that  parties  have  made  a  written 
agreement  for  a  sale  without  providing  for  any  covenants  cer- 
tainly tends  to  indicate  that  they  did  not  intend  there  should 
be  any .6^ 

Although  there  is  a  manifest  impropriety  in  permitting  local 
usage  or  custom  to  iutluence  the  terms  of  an  express  contract, 

55  McKinney   v.    Settles,    31    Mo.  "^  Kyle  v.   Cavanagh,   103   Mass. 

541.  356;  Thayer  v.  Torrey.  37  N.  J.  L. 

50  Saunders  v.   Hanes,   44  N.   Y.  339;  and  see  Bagley  v.  Fletcher,  44 

353;  Collins  v.  Lavalle.  44  Vt.  230.  Ark.  153. 

■'•■  Chiles    V.    Conley's    Heirs.    2  "-'  Taft  v.  Kessel.  16  Wis.  273. 

Dana    (Ky.),  21.  ••••<  Delevan   v.   Duncan.   49   N.  Y. 

'•»  Morgan  v.  Clayton.  61  HI.  35;  485;   Davis  v.  Henderson,  17  Wis. 

Rowe  V.  Becker,  30  Ind.  154;   Pin-  105;  Parker  v.  Parmlee.  20  Johns, 

gree  v.  Watkins,  15  Vt.  479.  (N.  Y.)  130. 

•■''i>  Nicholson    v.   Caress.    45    Ind.  «<  Johnston  v.  Mendenhall,  9  W. 

479:  Carter  v.  Wise,  39  Tex.  273.  Va.  112. 

«>•  Brady  v.  Spfuck.  27  111.  478. 


414  THE    MEDIUM    OP    TRANSFER. 

particularly  in  sales  of  land,  courts  have  sometimes  interposed 
to  supply  deficiencies  or  omissions  in  such  contracts;  and  it 
has  been  held  that  under  a  contract  for  conveyance  which  is 
silent  as  to  the  character  of  the  deed  to  be  given,  the  pur- 
chaser is  entitled  to  a  deed  with  such  covenants  as  are  usual 
by  the  custom  of  the  place  where  the  land  lies;®''  and  the  prin- 
ciple is  also  recognized  in  many  of  the  states  that  a  vendor 
who  makes  a  sale  of  lands  for  his  own  benefit  can,  in  general, 
be  required  to  give  a  covenant  of  general  warranty/'*'  But 
these  decisions  do  not  affect  the  general  principle  first  stated, 
and  notwithstanding  they  have  been  made  in  the  interests  of 
justice  and  fair  dealing  their  propriety  may  well  be  ques- 
tioned. Where  parties  desire  and  intend  that  the  conveyance 
shall  be  with  covenants  they  should  so  stipulate;  for  if  a  con- 
veyance is  tendered  in  all  respects  eflficient  to  convey  the  title 
and  all  the  grantor's  interest  in  the  property,  the  imposition  of 
any  further  duties  in  respect  thereto  or  the  assumption  of  any 
burdens  in  connection  therewith  should  be  the  subject  of  a 
distinct  and  clearly  expressed  agreement. 

Where  the  contract  provides  for  a  warranty  deed  this  is 
generally  understood  as  meaning  the  five  covenants  now 
usually  inserted  in  deeds  of  bargain  and  sale. 

A  contract  to  give  a  "good  and  sufficient"  deed  of  convey- 
ance, whether  with  or  without  warranty,  calls  for  an  opera- 
tive conveyance — one  not  merely  good  in  form,  but  in  sub- 
stance as  well,  and  which  carries  with  it  the  title  to  the  land; 
and  even  though  the  deed  may  be  with  covenants  of  warranty 
it  seems  that  it  is  not  sufficient  if  the  vendor  has  no  title  or 
only  an  imperfect  one.^''  The  mere  giving  of  a  warranty  deed 
is  not  regarded  as  a  compliance  with  a  covenant  to  convey  by 
that  form  of  deed  where  the  title  is  incumbered  or  otherwise 
defective. 

§  352.  Re-execution  of  lost  deeds.  Under  the  operation  of 
our  recording  laws,  deeds  and  other  instruments  of  convey- 
ance are  not  guarded  with  the  same  care  as  in  England  and 

65Gault  V.  Van  Zile,  37  Mich.  22.  ford  v.  Turner,  67  Mo.  296;  John- 

esFaircloth  v.  Isler,  75  N.  C.  551;  ston  v.  Piper,  4  Minn.  195;  Witter 

Allen  V.  Hazen,  26  Mich.  143;  Linn  v,  Biscoe,  13  Ark.  422. 

V.  Barkly,  7  Ind.  70;  Vanda  v.  Hop-  e?  Everson  v.   Kirtland,   4  Paige 

kins,    1    J.   J.   Marsh.    (Ky.)    293;  (N.  Y.)  628. 

Clark  V.  Lyons,  25  111.  105;   Herry- 


THE    MEDIUM    OF    TRANSFER.  415 

other  countries  where  no  general  system  of  public  registration 
prevails.  Indeed  but  few  proprietors  can  produce  other  of 
the  title  deeds  of  their  lands  than  the  immediate  instrument 
by  which  they  accjuired  same  and,  in  many  cas«*s,  whcie  long 
possession  has  intervened,  even  this  not  infrequently  becomes 
lost.  If  the  instrument  has  been  recorded  no  evil  effect  will 
usually  result  from  the  loss  unless  the  record  is  itself 
destroyed. 

P>ut  it  may  happen  that  after  the  purchase  i)rice  has  been 
paid,  and  the  purchaser  let  into  possession,  the  operative 
instrument  of  conveyance  is  lost  or  destroyed  without  having 
been  placed  of  record.  In  such  event,  the  vendor  having  dis- 
charged the  legal  duties  imposed  upon  him,  what  remedy  is 
left  to  the  vendee  who  by  accident  or  misfortune  is  thus 
unable  to  assert  a  paper  title?  Undoubtedly  he  might  resort 
to  the  aid  of  equity  to  restore  the  lost  deed,*^^  but  this,  it 
seems,  will  not  be  the  only  way  of  escape  from  his  dilemma, 
for,  as  it  would  be  inequitable  in  such  a  case  for  the  vendor 
to  retain  the  record  title,  a  court  of  chancery,  acting  within 
its  general  jurisdiction,  may  compel  the  vendor  to  execute  a 
new  deed.^^ 

«HSee  Hord  v.  Baugh,  7  Humph.        so  Kent  v.  Church,  136  N.  Y.  10; 
(Tenn.)  576;  Lancy  v.  Randlett,  80    Cummings  v.  Coe,  10  Cal.  259. 
Me.   169;    Griffin  v.  Fries,   23  Fla. 
173. 


CHAPTER  XIII. 

CONSTRUCTION   OF   DEEDS. 


§  353.    General  rules. 


§  360.     Consideration. 


354.     Construction    in    favor    of       361.     The  habendum. 


grantee. 

362. 

Testamentary  writin 

355. 

Ambiguities  and 
encies. 

inconsist- 

363. 

Deed    construed    as 
gage. 

356. 

The  premises. 

364. 

Doctrine  of  relation. 

357. 

Recitals. 

365. 

Lost  deeds. 

358. 

The  parties. 

366. 

Forged  deeds. 

359. 

Presumption  as 

to  grantee 

— Persons  of  same  name. 

mort- 


§  353.  General  rules.  It  is  a  fundamental  rule  in  the  con- 
struction of  deeds  that  effect  must  be  given  to  the  intent  of 
the  parties  when  it  is  plainly  and  clearly  expressed,  or  can  be 
collected  or  ascertained  from  the  instrument,  and  is  not 
repugnant  to  any  rule  of  law.^  Technical  rules  of  construc- 
tion are  never  to  be  resorted  to  where  the  meaning  is  plain  and 
obvious  ;2  and  in  the  exposition  of  deeds  the  construction  must 
be  upon  the  view  and  comparison  of  the  whole  instrument, 
and  with  an  endeavor  to  give  every  part  of  it  meaning  and 
effect.3  So,  too,  while  courts  cannot  give  effect  to  an  instru- 
ment in  writing  so  as  to  do  violence  to  the  rules  of  language 
or  to  the  rules  of  law,  yet  they  are  to  give  it  such  a  construc- 
tion as  will  bring  it  as  near  to  the  actual  meaning  of  the 
parties  as  the  words  which  they  have  seen  fit  to  employ  and 
the  rules  of  law  will  permit.* 


1  Flagg  V.  Eames,  40  Vt.  16;  Car- 
son V.  McCaslin,  60  Ind.  337;  Lehn- 
dorf  V.  Cope,  122  111.  317;  Bent  v. 
Rogers,  137  Mass.  192. 

2Noyes  v.  Nichols,  28  Vt.  159; 
Huntington  v.  Lyman,  138  Mass. 
205;  Kimball  v.  Semple,  25  Cal. 
449. 

3  Jackson  v.  Meyers,  3  Johns. 
(N.  Y.)  383;  Dickens  v.  Barnes,  79 
N.  C.  490;  Jackson  v.  Sharp,  27 
Wis.  472;     Higginbothan    v.   Stod- 


dard, 72  N.  Y.  99;  Cooper  v.  Cooper, 
76  111.  60;  Pike  v.  Monroe,  36  Me. 
309. 

*  It  not  infrequently  happens  that 
instruments  cannot  have  the  effect 
intended  by  the  parties,  but  effect 
is  given  to  them  in  another  way 
consistently  with  such  intention. 
The  rule  is  "that  they  shall  operate 
according  to  the  intention  of  the 
parties,  if  by  law  they  may,  and,  if 
they  cannot  operate  in  one  form, 


416 


CONSTRUCTION    OF    DEEDS.  417 

A  deed  will  be  construed  according  to  its  apparent  intent 
where  the  language  is  defective,'^  and,  if  necessary,  the  clauses 
of  a  deed  may  be  rejected  or  transposed  so  as  to  give  it  its 
apparent  construction.''' 

As  a  general  rule,  the  rights  of  the  parties  to  a  deed  must 
be  ascertained  from  the  words  of  the  instrument;  but  this 
rule  is  subject  to  the  moditication  that  surrounding  circum- 
stances may  be  taken  into  consideration,'^  the  particular  sit- 
uation of  the  parties,  and  the  state  of  the  thing  granted.^ 

Where  vagueness  or  uncertainty  may  seem  to  exist,  evi- 
dence aliunde  may  be  resorted  to;  and  if  with  the  aid  of  extrin- 
sic facts  and  circumstances'-^  the  intent  of  the  parties  can  be 
ascertained  with  reasonable  certainty,  the  conveyance  will  be 
sustained.^''  On  the  other  hand,  where  the  language  employed 
is  so  uncertain  that  the  intention  of  the  parties  cannot  be  dis- 
covered, the  deed  is  void;  and  this  whether  the  uncertainty 
has  reference  to  the  person  of  the  grantee  or  the  description  of 
the  thing  granted. 

Questions  of  construction  arise  most  frequently  with  respect 
to  the  property  conve^-ed  and  the  extent  and  duration  of  the 
estates  therein  created;  and  as  these  matters  are  made  the 
subjects  of  subsequent  chapters,  where  they  are  treated  in 

they  shall  operate  in  that  which  by  «  Batavia    Mfg.    Co.    v.    Newton 

law  shall  effectuate  the  intention."  Wagon  Co.  91  111.  230;   Hadden  v. 

Peckham  v.   Haddock,   36   III.   38;  Shoutz,  15  111.  581;  Mulford  v.  Le 

Litchfield    v.   Cudworth,   15    Pick.  Franc,   26  Cal,   88;    Dunn  v.   Eng- 

(Mass.)   23.  lish,    23    N.    J.    L.    126;    Abbott   v. 

5  Cumberland,  etc.  Ass'n  v.  Ara-  Abbott,    53     Me.    356;     Pollard    v. 

mingo,  etc.  Church,  13  Phil.,  (Pa.)  Maddox,  28  Ala.  325. 

171;  Lehndorf  v.  Cope,  122  111.  317.  'Jit  has  been  held  that,  in  con- 

«  Staton  V.  MuUis,  92  N.  C.  623;  struing  the  language  of  a  deed,  the 

Anderson  v.  Baughman,  7  Mich.  69.  court  must  assume  that  the   par- 

7  Courts  must  give  a  common-  ties  to  the  deed  stood  upon  the 
sense  construction  to  grants,  and  ground  and  had  all  the  lands  and 
will  consider  the  state  of  things  boundaries,  natural  and  artificial, 
and  the  considerations  in  view  of  as  well  as  lands  of  adjoining  own- 
the  parties  at  the  time  the  grant  ers,  in  full  view  at  the  time.  Wen- 
is  made,  which  move  them  to  its  dell  v.  Jackson,  8  Wend.  (N.  Y.) 
execution   and   acceptance.    Louis-  183. 

ville,  etc.  R.  R.  Co.  v.  Koelle,  104  lo  Peck  v.  Mallams,  10  N.  Y.  532; 

111.  455;    and  see  Treat  v.  Strick-  Walch  v.  Ringer,  2  Ohio,  327;  Gano 

land,  2  Me.  234;  Truett  v.  Adams,  v.  Aldridge,  27  Ind.  294;  Anderson 

66  Cal.  218.  v.  Baughman,  7  Mich.  69. 

27 


418  CONSTRUCTION    OF    DEEDS. 

detail,  do  attempt  will  be  made  in  the  subsequent  paragraphs 
to  elucidate  any  points  or  determine  any  questions  growing 
out  of  the  descriptions  of  lands  or  the  creation  of  estates. 

§  354.  Construction  in  favor  of  grantee.  It  will  sometimes 
happen  that,  by  reason  of  peculiar  circumstances  and  condi- 
tions which  practically  preclude  any  other  view,  a  deed  must 
be  construed  most  strongly  in  favor  of  one  of  the  parties  in 
respect  to  the  thing  granted  and  the  estate  conveyed,  and  the 
rule  is  that  in  such  cases  such  a  construction  shall  be  had  as 
is  most  favorable  to  the  grantee.^ ^  But  such  construction  is 
the  last  one  to  which  courts  apply,  and  ought  never  to  be 
resorted  to  so  long  as  a  satisfactory  result  can  be  reached  by 
other  rules  ;i 2  ^nd  is  not  applicable  to  any  case  but  one  of 
strict  equivocation,  where  the  words  used  will  bear  either  one 
of  two  or  more  interpretations  equally  well.^^ 

The  rule  is  based  upon  the  principle  that  a  deed  should 
never  be  held  void  when  the  words  may  be  applied  to  any 
intent  to  make  it  good,  and  to  that  end  they  are  to  be  taken 
most  strongly  against  the  grantor;  for  he  should  not  be 
allowed  to  say  a  description  framed  by  himself  was  so  inde- 
finite that  no  title  to  the  property  could  be  acquired.^* 

The  rule  governing  controversies  between  grantor  and 
grantee,  by  which  the  language  of  a  conveyance  is  required 
to  be  taken  most  strongly  against  the  grantor,  has  no  appli- 
cation when  the  dispute  occurs  between  parties  claiming 
under  the  same  conveyance  and  who  are  each  entitled  to  the 
benefit  of  the  same  rule  of  construction.^^  Nor  is  it  applicable 
to  a  deed  with  statutory  and  express  covenants,  as  it  is  a  rule 
of  equal  force  that  all  statutes  in  derogation  of  the  common 
law  must  be  construed  strictly.^  ^ 

§  355.  Ambiguities  and  inconsistencies.  The  proposition  is 
fundamental  that  the  construction  of  all  deeds  must  be  favor- 
able and  as  near  the  minds  and  intents  of  the  parties  as  the 
rules  of  law  will  admit,i^  the  entire  instrument  being  duly 

11  People  V.  Storms,  97  N.  Y.  364;  "  Albee  v.  Huntly,  56  Vt.  458. 

Hager  v.  Spect,  52  Cal.  579;  Mills  v.  i*  People  v.  Storms,  97  N.  Y.  364. 

Catlin,  22  Vt.  98;   Winslow  v.  Pat-  is  Coleman  v.  Beach,  97  N.  Y.  545. 

ten,  34  Me.  25;  Watson  v.  Boylston,  I'i  Finley  v.  Steele,  23  111.  56. 

5  Mass.  411.  17  Fish    v.    Hubbard,    24    Wend. 

i2Flagg  V.  Eames,  40  Vt.  16.  (N.  Y.)    654;    Brookman  v.   Kurz- 


CONSTRUCTION    OF    DEEDS.  410 

surveyed  and  the  various  parts  so  adapted  and  construed  that 
the  whole,  if  possible,  may  stand.^*  Where  the  description  of 
the  parties  or  [jropci'ty  \»  ainbi^nioiiw,  or  where  there  is  iucou- 
sisteiicy  in  the  several  particiiUuH,  words,  if  necessary,  may 
be  supplied  by  intendment,  and  particular  clauses  and  pro- 
visions (jiialified,  ti-ansposed  or  rejected  in  order  to  give  effect 
to  apparent  intention.'"-'  What  words  or  clauses  shall  be 
rejected  or  qualified  in  case  of  uncertainty  is  frequently  deter- 
mined by  giving  effect  to  those  parts  or  clauses  which  are  most 
certain,  and  to  particulars  in  respect  of  which  the  parties 
would  be  least  likely  to  have  made  a  mistake.^o 

It  is  an  old  rule  that,  in  the  construction  of  deeds,  the 
earlier  clauses  control  the  later  ones;  but  this  rule,  in  effect, 
is  practically  abrogated,  or  if  employed  is  only  resorted  to 
when  reconcilement  becomes  impossible.  The  later  and  better 
rule  would  seem  to  be  that  inconsistencies  are  to  be  recon- 
ciled if  possible ;-i  and  while  the  former  rule  may  still  be 
applied  where  a  subsequent  clause  would  defeat  the  grant, 
it  is  never  permitted  to  prevail  where  there  is  room  for  con- 
struction.22  If  it  is  the  clear  intent  of  the  grantor  that  appa- 
rently inconsistent  provisions  of  a  deed  shall  all  stand,  such 
limitations  upon  and  interpretation  of  the  literal  signification 
of  the  language  used  will  be  imposed  as  will  give  effect,  if 
possible,  to  all  of  its  provisions.^^  On  the  other  hand,  where 
the  intention  of  the  parties  is  decisively  shown  from  one 
clause,  the  intention  thus  shown  will  control,  notwithstanding 
ambiguities  and  inconsistencies  in  other  dauses.^^ 

It  is  a  further  rule,  of  general  application,  that  a  manifest 
general  intent  will  control  a  particular  intent. 

§  356.     The  premises.     Technically  the  premises  of  a  deed  is 

man,  94  N.  Y.  273;  Bent  v.  Rogers,  20  Case  v.  Dexter,  106  N.  Y.  548; 

137   Mass.   192;    Waterman  v.   An-  Bent  v.  Rogers,  137  MasS.  192. 

drews,  14  R.  I.  589;  Bryan  v.  Brad-  21  Waterman  v.  Andrews,  14  R.  I. 

ley,  16  Cond.  474.  589. 

i«  Booth  V.  Mill  Co.  74  N.  Y.  21;  22  Tucker  v.  Meeks,   2  Sweeney 

Parker  v.  Nichols,  7  Pick.  (Mass.)  (N.  Y.),  736. 

Ill;  Salisbury  V.  Andrews,  19  Pick.  2:1  Coleman    v.    Beach.    97    N.    Y. 

(Mass.)    250.  545;  Salisbury  v.  Andrews,  19  Pick, 

i»  Hathaway    v.    Power,    6    Hill  (Mass.)   250. 

(N.  Y.),  453;   Anderson  v.  Baugh-  24  Bent    v.     Rogers,    137     Mass. 

man.  8  Mich.  60;   Riggin  v.  Love,  192. 
72  111.  556. 


420  CONSTRUCTION    OF    DEEDS, 

everything  which  precedes  the  habendum,  and  includes  the 
most  material  and  operative  parts  of  the  instrument.  The 
date,  where  the  instrument  takes  the  form  of  an  indenture,  is 
always  placed  at  the  beginning  of  the  premises,  but  is  gen- 
erally regarded  as  the  least  material  part.  It  is  customary 
to  insert  it,  and  good  conveyancing  requires  that  it  should 
be  stated;  yet,  as  a  matter  of  law,  the  date  is  no  part  of  the 
substance  of  the  deed  and  is  not  necessary  to  its  operation 
or  effect.-^  Though  the  expressed  date  of  a  deed  is  immaterial 
to  its  operation  and  effect,  and  may  under  ordinary  circum- 
stances be  contradicted  and  explained,  yet,  when  taken  in 
connection  with  conditions  or  stipulations  annexed  to  the 
grant,  it  may  become  important  in  fixing  the  time  for  the 
performance  of  any  act  by  grantor  or  grantee,  and  in  such 
case  cannot  be  varied  by  parol.^^  The  date  of  a  deed,  in  the 
absence  of  other  proof,  is  presumed  to  be  the  true  date  of  its 
execution27  as  well  as  delivery ;28  but  should  the  instrument 
be  without  date,  the  date  of  acknowledgment  may  be  pre- 
sumed as  indicative  of  the  time  of  the  performance  of  those 
acts.29 

The  premises  also  contain  the  names  of  the  parties,  the 
consideration  recitals,  the  operative  words  of  conversance,  and 
the  description  of  the  property  conveyed,  each  of  which  will 
be  duly  considered  in  its  appropriate  place. 

In  common  parlance  the  lands  conveyed  are  frequently 
spoken  of  as  the  premises.  This  expression  has  obtained 
currency  largely  through  a  misapprehension  of  its  import  by 
the  laity.  The  description  being  placed  in  the  premises  it 
has  long  been  customary  for  lawyers,  whenever  occasion  arose 
for  a  reference  to  the  description,  instead  of  repeating  the 
verbiage  of  the  grant  to  refer  to  it  simply  as  the  premises. 

25  Jackson     v.     Schoonmaker,    2  ever  since  Edward  II.  it  has  been 

Johns.  (N.Y.)  234;   Meach  v.  Fowler,  customary  to  date  them.     4  Cruise, 

14  Ark.  29;    Costigan  v.   Gould,  5  216. 

Denio  (N.  Y.),  290;  Blake  V.  Fish,  2g  Joseph    v.    Biglow,     4     Cush. 

44   111.  302;    Thompson  v.  Thomp-  (Mass.)   82. 

son,    9    Ind.   323.     It   is   said   that  2"  Darst    v.    Bates,    51    111.    439; 

formerly  deeds  were  not  dated,  for  Smith  v.  Porter,  10  Gray  (Mass.), 

the  reason  that  a  deed  dated  before  66. 

the  period  of  prescription,  which  28  Hardin  v.  Crate,  78  111.  553. 

was  constantly  changing,  was  sup-  29  Gorman  v.  Stanton,  5  Mo.  App. 

posed   not  to  be  pleadable.      But  585. 


CONSTRUCTION    OF    DEEDS.  421 

The  laity,  observing  the  cusloin  but  not  understanding  its 
meaning,  then  came  to  regard  it  as  indicating  hind  itself,  and 
so  the  phrase  passed  into  common  speech.  Thus,  it  is  by  no 
means  infre(iuent  to  see  a  card  in  the  window  of  a  house 
which  announces  that  the  "premises"  are  to  let.  The  author 
would  not  have  volunteered  this  bit  of  elementary  law  were 
it  not  that  many  lawyers  seem  to  be  t^mploying  the  term  in 
the  .same  incorrect  manner.  The  word  "premises"  when  used 
in  legal  phraseology  relating  to  land  always  refers  to  the 
description  of  the  land  and  not  to  the  land.  That  is,  it  is  not 
synonym  for  land,  but  only  of  the  land  as  described  in  the 
deed,  and  is  practically  meaningless  if  used  in  any  other  way. 
However,  as  custom  makes  law,  and  as  the  expression  is  most 
convenient  and  comi)endious,  it  may  be  that  it  will  eventually 
come  to  represent  not  the  terms  by  which  land  is  described 
but  land  itself,  without  reference  to  its  description.  Indeed, 
we  occasionally  find  the  word  used  in  this  manner  by  courts. 

vi  357.  Kecitals.  The  recitals  of  a  deed  being  unnecessary 
to  its  validity,  cither  at  law  or  in  equity,  are  never  permitted 
to  control  its  operation  or  limit  its  construction.^"^  They  may 
be  of  use  to  explain  a  doubt  of  the  intention  or  meaning  of 
the  parties,  but  the  deed  must  have  the  etTect  which  its  oper- 
ative words  import  regardless  of  any  language  inserted  merely 
by  way  of  recital.-''^  The  most  that  can  be  claimed  for  them 
is  an  operation  by  way  of  esto])pel,  and  in  this  particular  they 
are  generally  held  to  be  effectual.^- 

>;  358.  The  parties.  Considerable  space  has  already  been 
devoted  to  a  consideration  of  the  subject  of  the  parties  to  a 
conveyance  of  land,  and  as  to  who  are  and  who  are  not  capable 
of  contracting,  as  well  as  the  manner  in  which  a  valid  contract 
may  be  made.  It  is  not  intended,  therefore,  to  repeat  here 
any  part  of  what  has  been  said  with  respect  to  the  capacity 
of  parties  or  methods  of  contracting,  but  to  point  out  the 
essentials  of  the  conveyance  with  respect  to  the  manner  in 

30  Huntington  v.  Havens,  5  Johns,  which   formed   the   inducement   of 
Ch.   (N.  Y.)   23.  the  conveyance,  by  way  of  recital. 

31  Moore  v.   GrifRn,   22  Me.   350;  At  present  such  recitals  are  almost 
Clark  V.  Post,  113  N.  Y.  17;  Walker  wholly  confined  to  official  deeds. 
V.  Tucker,  70  111.  527.     It  was  for-        ''^  Stow  v.  Wise,  7  Conn.  214.   See 
merly   customary  to   insert  a  his-  Peck  v.  Hensley,  20  Tex.  673. 
tory   of   title,   or   special     matters 


422  CONSTRUCTION    OF    DEEDS. 

which  such  contracting  parties  should  be  distinguished  and 
identified.  To  make  a  valid  and  effectual  conveyance  by  grant 
it  is  essential  that  the  name  of  the  grantor  shall  be  inserted 
in  the  premises,  together  with  apt  words  showing  an  intention 
to  convey,  and  it  seems  that  merely  signing  a  deed  is  not 
sufficient  if  the  name  of  the  person  so  signing  appears  nowhere 
else.33  On  this  point,  however,  the  authorities  are  not  agreed 
and  some  cases  announce  a  contrary  rule.^^ 

It  is  further  essential  to  the  validity  of  every  conveyance 
that  it  be  to  a  grantee  capable  of  taking  and  of  proper  identi- 
fication; and  while  it  is  not  essential  that  the  grantee  shall 
actually  be  named,  yet  if  not  named  he  must  be  so  described 
as  to  make  him  capable  of  designation.^^  There  is  perhaps  a 
necessary  uncertainty  in  writings,  involved  in  their  applica- 
tion, both  as  to  persons  and  things  described  therein,  and 
parol  proof  is  sometimes  absolutely  indispensable  to  fix  the 
identity  of  the  person  intended  or  the  thing  concerning  which 
the  parties  propose  to  contract;  yet  a  written  contract,  in 
order  to  comply  with  the  statute,  must  be  in  some  sense  self- 
sustaining.  *'It  would  be  mere  folly,"  as  was  said  in  one  case, 
'•^to  make  a  conveyance  to  my  next-door  neighbor,  or  to  the 
person  now  sitting  at  the  table  with  me,  by  this  description 
instead  of  by  name,  and  the  law  could  hardly  be  expected  to 
enforce  such  a  conveyance."  The  description  of  the  parties, 
therefore,  is  equally  as  important  as  that  of  the  property,  and 
should  be  of  such  a  character  as  to  leave  no  doubt  as  to  Ihe 
person  or  persons  intended. 

The  rules  relating  to  designation  and  capacity  are  funda- 
mental, and  hence  a  deed  to  the  heirs  of  a  living  person  named 
therein,  without  giving  the  names  of  the  heirs,  would  be  a 
nullity  and  pass  no  title  to  any  one;^^   so,  too,  of  a  deed  to  a 

33  stone  V.  Sledge,  87  Tex.  49;  Morris  v.  Stephens,  46  Pa.  St.  200. 
Peabody  V.  Hewitt,  52  Me.  33;  Pur-  In  a  similar  case  in  Tennessee, 
cell  V.  Gashorn,  17  Ohio,  105;  Har-  however,  it  was  held  that  the  word 
rison  v.  Simmons,  55  Ala.  510.  "heirs"  should  not  be  taken  in  its 

34  See  Armstrong  v.  Stovall,  26  technical  signification,  but  to  mean 
Miss.  275;  Elliot  v.  Sleeper,  2  N.  H.  "children,"  and  that  the  deed  took 
525.  effect    as    a    present    grant.     See 

35  Simmons  v.  Spratt,  20  Fla.  Grimes  v.  Orrand,  2  Heisk.  (Tenn.) 
495;  Newton  v.  McKay,  29  Mich.  1.  298.     So,  too,  it    has    been    deter- 

36  Hall  V.  Leonard,  1  Pick.  27;  mined  in  a  number  of  cases,  that 
Winslow   V.   Winslow,   52   Ind.   8;  the  word  "heirs,"  notwithstanding 


CONSTRUCTION    OF    DEEDS.  423 

corporation  which  hiiH  no  h'gal  existence."'"  Hut  coiirtH,  in 
the  application  of  these  rules,  are  ever  iuclincd  to  a  liberal 
interju'ctation;  and  although  no  giaiitcc  be  named,  if  the 
grant  he  made  for  a  spccilic  use,  a  trust  will  often  be  created 
which  a  court  of  equity  will  protect,  and,  if  necessary,  appoint 
a  trustee  and  compel  a  conveyance  to  him  of  the  legal  title.^"* 
A  conveyance  to  John  Smith  &  Co.  would  at  law  have  the 
effect  to  vest  title  in  John  Smith  alone;  for  the  several  mem- 
bers of  a  firm  cannot  be  regarded,  in  the  view  of  a  court  of 
law,  as  holding  real  estate  as  tenants  in  common,  unless  it  be 
conveyed  to  them  as  such  by  name.^^  So,  also,  a  conveyance 
to  Thomas  Harnett  &  Bro.  has  been  held  to  vest  title  in 
Thomas  Harnett  only,  and  that  a  conveyance  from  him  would 
give  to  his  grantee  a  valid  title  to  the  entire  estate."*®  It  is 
not  contended,  however,  that  such  a  deed  would  be  altogether 
void  in  respect  to  the  unnamed  members  of  the  partnerehip, 
but  simply  that  it  would  be  without  legal  operation  as  to 
them;  for  it  seems  that  while  a  finn  name  is  not  usually 
considered  a  sufficient  designation  of  unnamed  parties  in  law, 
it  may  nevertheless  be  regarded  as  a  latent  ambiguity  which, 
may  be  explained  by  parol  ;^^  while  in  ecjuity  the  i)artner  thus 
specifically  named  would  be  treated  as  holding  the  legal  title 
in  trust  for  the  partnership.^^  ^  grant  to  John  Smith  &  Son, 
however,  would  be  effective  as  in  this  instance  one  of  the 
grantees,  though,  not  specifically  named,  is  yet  sufficiently 
described  to  admit  of  identification,^^  and,  upon  the  same  ])rin- 
ciple,  a  grant  to  one  by  name  and  his  "Bro."  would  seem  to 

its  primary  meaning,  is  susceptible  fs  Bailey    v.    Kilburn,     10    Met. 

of   more   than   one   interpretation,  (Mass.)   176. 

and  while  the  rule,  as  stated  in  •'•»  Arthur  v.  Webster,  22  Mo.  378; 
the  text  still  holds  good,  yet  when  Winter  v.  Stock,  29  Cal.  407;  Gas- 
it  is  apparent  from  the  instrument  sett  v.  Kent.  19  Ark.  607;  Moreau 
itself  and  the  surrounding  circum-  v.  Saffarans,  3  Sneed  (Tenn.),  595. 
stances  that  in  using  the  word  the  ^"  Barnett  v.  Lachman,12Nev.361. 
grantor  meant  children,  courts  may  <i  Murry  v.  Blackledge,  71  N.  C. 
so  construe  it  and  thus  give  effect  492. 

to  the  instrument.  Heath  v.  Hewitt,  *-  Moreau  v.  Saffarans,  3  Sneed 

127  N.  Y.  166;  Huss  v.  Stephens,  51  (Tenn.),  595. 

Pa.  St.  282.  *^  As  a  general  rule  grantees  may 

3T  Douthitt    V.    Stinson,    63     Mo.  always  take  under  the  general  des- 

268;     Hornbeck    v.    Westbrook,    9  ignation  of  "sons,"  "daughters"  or 

Johns.   (N.  Y.)  73.  "children." 


434  CONSTRUCTION    OF    DEEDS. 

be  sufficient,  but,  iu  the  case  above  referred  to,  the  court  held 
otherwise. 

A  misnomer  will  not  ordinarily  defeat  a  grant;  and  a  deed 
to  a  party  by  a  wrong  baptismal  or  christian  name  may  yet 
suffice  to  vest  title  in  the  intended  grantee,^*  extrinsic  evidence 
being  admissible  to  explain  mistakes  or  prove  identity;^'*  and 
if  upon  a  view  of  the  whole  instrument  the  grantee  is  pointed 
out,  the  grant  will  not  fail,  even  though  the  name  of  baptism 
is  not  given  at  all.'*''  Where  father  and  son  bear  the  same 
name,  unless  explained,  the  grant  will  be  taken  as  one  to  the 
father.^^ 

The  grantor  in  a  deed  is  usually  indifferent  as  to  who  the 
grantee  is,  where  he  receives  the  consideration  money  for  the 
land  conveyed,  and  the  designation  of  such  grantee  is  usually 
controlled  by  the  will  of  the  person  with  whom  he  negotiates 
and  from  whom  he  receives  the  pay;  but  unless,  from  the 
testimony,  it  appears  that  he  is  thus  willing  to  be  controlled, 
the  grantor's  intention  is  the  proper  subject  of  inquiry  in 
determining  who  the  grantee  is,  where  the  deed  is  so  drawn 
as  to  be  sufficient  to  convey  the  title  to  either  one  of  two 
parties.^^ 

§359.  Presumption  as  to  grantee — Persons  of  same  name. 
Notwithstanding  that  similarity  of  names  is  common,  and  that 
not  infrequently  the  same  name  is  borne  by  a  number  of  differ- 
ent parties  living  in  the  same  community,  it  is  rare  that  any 
attempt  is  made  to  assume  ownership  without  a  claim  of  right 
simply  by  reason  of  possessing  a  name  identical  with  that  of  a 
record  grantee.  In  the  cases  where  the  question  as  to  owner- 
ship has  arisen  the  contests  have  mainly  been  between  father 
and  son,  and  dependent  upon  peculiar  circumstances.  Where 
two  persons  bear  the  same  name  a  designation  of  character, 

44  Staak  V.  Sigelkow,  12  Wis.  234.  10  Paige   (N.  Y.),  170.     The  word 

But    see    Crawford  v.   Spencer,   8  "Jr."  forms  no  part  of  the  name 

Cush.   (Mass.)   418.  of  the  person  to  whose  name  it  is 

•J"'  Peabody    v.    Brown,    10    Gray  usually  affixed,  but  is  merely  de- 

(Mass.),  45.  scriptive   of   the   person    intended, 

4«  Newton  v.  McKay,  29  Mich.  1;  and  is  usually  adopted  to  describe 

Scanlan  v.  Wright,  13  Pick.  (Mass.)  the  son  where  father  and  son  both 

523.  have  the  same  christian  name  as 

47  Stevens     v.     West,     6     Jones  well  as  family  name.     Id. 

(N.  C),  49;   Padgett  v.  Lawrence,  48  Diener  v.  Diener,  5  Wis.  483. 


CONSTRUCTION    OF    DEEDS.  425 

a.s  "Sr.,"  ",Ir.,"  "iM,"  etc.,  oi-  i)()Hsil»l\  a  ririial  oT  tlif  jjlacc  of 
rcsidciifc,  may  bccoiiM*  an  ('flicicnl  means  of  point  in;;  out  tho 
true  person  meant;  yet,  as  a  matter  of  law,  the  terms  "Junior" 
or  "Senior"  Lave  no  particular  Ki^nificance  or  controlling 
etlicacy. 

Where  a  father  and  son  have  the  same  name,  and  a  convey- 
ance of  land  is  made  without  designating  whether  to  the 
father  or  the  son,  tlie  law  will  presume  that  lh«'  father  was 
intended  for  the  grantee  in  the  absence  of  proof  to  the  con- 
trary ;■*'*>  and  it  devolves  on  the  son  or  the  party  claiming  under 
him  to  introduce  evidence  sutlicient  prima  facie  to  overcome 
or  rebut  this  presumption.  Should  this  be  done,  however, 
the  oniLS  will  be  shifted  to  the  party  claiming  under  the  father, 
and  he  will  be  bound  to  i)roduce  proofs  sufiicient  to  overcome 
or  at  least  equal  in  probative  force  the  case  of  the  adverse 
party.'^*'  Where  a  deed  has  been  made  to  one  of  two  persons 
of  the  same  name — the  one  tlie  father  and  the  other  the  son — 
both  living  together  and  occupying  the  lands  conveyed,  the 
character  and  circumstances  of  the  occupancy,  as  bearing 
upon  the  question  as  to  who  was  intended  to  take  the  grant, 
are  proper  subjects  for  consideration.^^ 

§  360.  Consideration.  It  was  essential  to  the  validity  and 
operation  of  deeds  of  bargain  and  sale  under  the  statute  of 
uses  that  they  should  be  given  for  a  pecuniary  consideration, 
which  was  required  to  be  expressed  in  the  deed  or  proved 
independently  of  it.  In  modern  conveyancing  the  principle 
has  to  a  great  extent  been  retained;  but  any  consideration 
that  is  valuable,  though  merely  nominal,  will  be  sutlicient, 
nor  is  it  necessary  that  it  take  the  shape  of  money.'^- 

Gratuitous  or  voluntary  conveyances  are  valid  and  effective 
as  between  the  parties  and  all  others  whose  rights  are  not 
injuriously  affected  thereby;  but  whenever  a  deed  is  assailed 
by  one  who  lawfully  claims  a  right  or  interest  in  tlie  jtrojierty 
conveyed  adverse  to  the  grantee,  it  must,  to  insure  validity, 
be  supported  by  an  adequate  consideration.    "Good"  cousider- 

<»Graves  v.  Colwell.  90  111.  612;  ^-2  Smith  v.  Allen.  5  Allen  (Mass.) 

Padgett    V.    Lawrence,    10    Paige  454;   Charleston,  etc.  R.  R.  Co.  v. 

(N.  Y.),  170;    Stevens  v.  West,  6  Leech,  33  S.  C.  175;  Pool  v.  Docker, 

Jones,  L.   (N.  C.)    49.  92  111.  501;   Zane  v.  Zane.  r.  Munf. 

f'»  Graves  V.  Colwell.  90  111.  612.  (Va.)   406;   Pierson  v.  Armstrong, 

61  Graves  v.  Colwell.  90  111.  612.  1  Iowa.  282. 


4^6  CONSTRUCTION    OF    DEEDS. 

ations,  as  those  of  blood,  natuial  allcction,  etc.,  although 
meritorious,  are  not  usually  permitted  to  be  effective  in  such 
cases;  and,  as  a  rule,  to  maintain  a  deed  against  the  attack 
of  creditors,  owners  of  prior  equities,  etc.,  it  must  be  founded 
upon  some  consideration  which  the  law  deems  valuable.  The 
value  consists  of  some  benefit  conferred  upon  the  party  by 
whom  the  promise  is  made  or  upon  a  third  party  at  his 
request,  or  some  detriment  sustained  at  the  instance  of  the 
party  promising,  by  the  party  in  whose  favor  the  promise  is 
made. 

Money  is  always  considered  a  valuable  consideration;  but 
marriage,^^  agreements  for  support,-'^^  past  illicit  cohabita- 
tion,'^^  extinguishment  of  antecedent  debts^^ — although  with 
respect  to  this  many  authorities  are  to  the  contrary^'^ — and 
generally  any  act  or  thing  which  comes  within  the  definition 
first  given  and  is  adequate  or  commensurate  with  the  value  of 
the  land  conveyed,  will  be  sufficient  to  give  effect  to  the 
deed.^^ 

The  subject  is  of  vital  importance  whenever  a  conveyance 
is  assailed  as  fraudulent,  and  its  different  phases  will  be 
considered  in  detail  when  we  shall  come  to  treat  of  that  class 
of  conveyances. 

It  is  customary  and  proper  to  recite  in  the  deed  the  consider- 
ation paid  for  the  land  and  the  rules  of  good  conveyancing 
would  be  infringed  were  such  recital  omitted.  Such  recital, 
however,  is  not  conclusive  either  as  to  the  amount  paid  or  its 
receipt  by  the  vendor.  It  may  be  shown  that  the  real  consider- 
ation was  of  a  different  amount  from  that  expressed  in  the 
deed,^^  or  even  of  an  entirely  different  character.^o  ^g  between 

53  Smith      V.     Allen,     5     Allen  lor,  93  Ind.  431;  Safford,  v.  Wade, 

(Mass.),  454;   Verplank  v.  Sterry,  51  Ala.  214. 

12  Johns.   (N.  Y.)   536;  Whelan  v.        57  See  Johnson  v.  Graves,  27  Ark. 

Whelan,  3  Cow.  (N.  Y.)  537;  Ellin-  557;  Chance  v.  McWhorter,  26  Ga. 

ger  V.  Crowl.  17  Md.  361.  315;    Brown  v.  Vanlier,  7  Humph. 

5*  Hutchinson  v.  Hutchinson,  46  (Tenn.)  249;  Wood  v.  Robinson,  22 

Me.  154;   Exum  v.  Canty,  ^4  Miss.  N.   Y.   564;    Mingus   v.   Condit,    23 

533;    Shontz  v.  Brown,  27  Pa.  St.  N,  J.  Eq.  313. 
123.  sswood    V.    Beach,    7    Vt.    522; 

55  Doe  V.  Horn,  1  Ind.  363.  Jackson  v.  Leek,  19  Wend.  (N.  Y.) 

50  Ruth  V.  Ford,  9  Kan.  17;  Love  339;  Busey  v.  Reese,  38  Md.  264. 
V.   Taylor,   26   Miss.   567;    Frey  v.        59  Bowen     v.     Bell,     20     Johns. 

Clifford,  44  Cal.  335;  West  v.  Nay-  (N.  Y.)   338. 


CONSTRUCTION    OF    DEEDS.  427 

the  partii'K  it  may  be  shown  lliat  the  vcndfc  has  failed  to  pay 
the  sura  expiessed/'^  or  that  ho  has  aj;reed  to  pay  an  addi- 
tional amount  contingent  upon  some  future  event  or  trans- 
action.*'- This  results  from  the  fact  that  the  aj^jrccment  by 
the  vendee  to  pay  for  the  land  sold  is  not  within  the  statute 
of  frauds,"^  and  hence,  the  vendor,  althouj^'h  the  contract  has 
been  executed  on  his  part  by  conveyance,  may  still  maintain 
an  action  upon  the  agreement  and  establish  his  claim  by  parol 
testimony. 

§  361.  The  habendum.  The  office  of  the  habendum  in  a 
deed  is  to  limit  with  cei-tainty  the  estate  previously  conveyed 
by  the  jtremises.  It  cannot  be  made  to  effect  the  conveyance 
of  anything  not  mentioned  in  the  premises;  nor  can  it  change 
the  character  of  the  estate  thereby  convened,  or  divest  an 
estate  already  vested;  and,  in  general,  is  void  if  repugnant  to 
the  estate  granted. 

But  where  no  estate  is  mentioned  in  the  granting  clause, 
then  the  habendum  becomes  efficient  to  declare  the  intention 
of  the  parties,  and  will  rebut  any  implication  which  would 
otherwise  arise  from  the  omission  in  this  respect  in  the  pre- 
ceding clause.  So,  also,  where  the  granting  clause  in  a  deed 
merely  describes  the  property  and  does  not  define  the  nature 
or  character  of  the  estate  granted,  and  is  not  followed  by 
language  assuming  to  supply  what  is  thus  omitted,  it  results 
by  legal  implication  under  the  statute  relating  to  conveyances, 
as  enacted  in  most  of  the  states,  that  the  estate  is  a  fee;  but 
where  the  habendum  describes  what  estate  is  conveyed,  it  does 
not  contradict  the  language  of  the  granting  clause,  but  simply 
supplies  what  is  omitted  therefrom  and  removes  all  necessity 
for  resorting  to  implication  to  ascertain  the  intention  of  the 
parties.^'^  When  it  is  clear  from  the  whole  instrument  and 
attendant  circumstances  that  the  grantor  intended  the  haben- 
dum  to  operate  as  an  addendum  or  proviso  to  the  granting 

«o  McCrea  v.  Purmort,  16  Wend.  Kendig,  55   Iowa  174;    Linscott  v. 

(N.  Y.)   460.  Mclntire,  15  Me.  201;   or  even  the 

«i  Shepard    v.    Little,    14    Johns,  whole   of   such    proceeds;    Hall   v. 

(N.  Y.)    210.  Hall.  8  N.  H.  129. 

'■>-  As  that  upon  a  resale  he  would  '■  >  Thomas  v.  Dickerson,  12  N.  Y. 

pay  a  portion  of  the  proceeds  that  364. 

might   be    received     in     excess    of  «*  Riggin  v.  Lowe,  72  111.  553. 
amount    paid    by   him;    Miller   v. 


428  CONSTRUCTION    OF    DEEDS. 

clause,  and  to  control  the  same  to  the  extent  of  limiting  the 
estate  conveyed,  the  hahendum  must  control/'^ 

So,  too,  while  no  person  can  take  a  present  estate  under  a 
deed  unless  named  therein  as  a  party,  and  while  the  habendum 
can  never  introduce  one  who  is  a  stranger  to  the  premises  to 
take  as  grantee,®**  yet,  where  the  grantee's  name  has  been 
omitted  in  the  premises,  if  the  hahendum  be  to  him  by  name, 
he  takes  as  a  party  and  the  defect  is  cured.°^ 

§  362.  Testamentary  writings.  While  it  is  a  generally- 
conceded  rule  that  a  grantor  may  make  a  valid  present  con- 
veyance of  an  estate  to  commence  in  futuro,  yet  such  deeds 
must  be  carefully  distinguished  from  instruments  of  a  testa- 
mentary character  and  revocable  at  the  option  of  the  grantor. 
A  will  which  is  effective  as  a  conveyance  only  at  the  maker's 
death  is,  from  its  own  nature,  ambulatory  and  revocable 
during  his  life;  and  it  is  this  ambulatory  quality  which  forms 
the  chief  characteristic  of  wills;  for  though  a  disposition  by 
deed  may  postpone  the  possession  or  enjoyment,  or  even  the 
vesting  of  an  estate,  until  the  death  of  the  disposing  party, 
yet  the  postponement  in  such  case  is  produced  by  express 
terms,  and  does  not  result  from  the  nature  of  the  instrument. 

The  reported  cases  have  a  tendency  to  leave  this  subject 
somewhat  in  doubt,  the  more  advanced  cases  assuming  posi- 
tions greatly  in  derogation  of  common-law  rules,  and  opposed 
in  many  instances  to  decisions  arrived  at  upon  substantially 
the  same  facts.  The  volume  of  authority,  how^ever,  sustains 
the  doctrine  that  an  instrument  in  form  a  deed  and  purport- 
ing to  convey  land,  but  providing  that  the  property  shall 
remain  the  grantor's  during  life,  the  deed  taking  effect  only  at 
his  decease,  is  a  mere  devise,  revocable  at  will,  and  passes  no 
title.68 

65  Bodine's  Admrs.  v.  Arthur,  91  be  a  deed,  but  to  be  testamentary 

Ky.  53.  in   its   character.     Cunningham  v. 

60  Blair  v.  Osborne,  84  N.  C.  417.  Davis,  62  Miss.  366.     So,  too,  a  con- 

67  Lawe  V.  Hyde,  39  Wis.  346.  veyance    in    the    usual     form,    but 

68  Bigley  v.  Souvey,  45  Mich.  370.  containing  the  words  "to  com- 
An  instrument  in  form  a  deed,  and  mence  after  the  death  of  both  of 
providing  that  "this  deed  not  to  said  grantors,"  and  "it  is  hereby 
take  effect  until  after  my  death,"  understood  and  agreed  between  the 
and  directing  the  beneficiary  to  grantors  and  grantee  that  the 
pay  the  maker's  debts,  held  not  to  grantee  shall  have  no  interest  in 


CONSTRUCTION    OF    DEEDS.  429 

The  form  of  the  iustruineut  is  of  coinijarativclj  little 
moment  for  almost  every  conceivable  form  of  writing  by 
which  men  have  attempted  to  convey,  bind,  or  declare  the 
legal  status  of  property  have  been  adjudged  to  be  wills,  and 
in  arriving  at  a  conclusion  as  to  whether  a  written  instrument, 
doubtful  in  its  character,  but  posthumous  in  its  ojieration,  is 
a  deed  or  will,  the  controlling  imjuiry  is  the  intention  of  the 
maker,''''  to  be  gathered  primarily  from  the  language  of  the 
instrument  itself.  The  attending  circumstances  may  also  be 
shown  in  evidence  as  aids  in  determining  whether  the  maker 
intended  that  the  paper  should  operate  as  a  deed  or  a  will,"^^ 
and  if  from  all  such  evidence  it  appears  that  the  maker  did 
not  intend  that  any  interest  should  vest  before  his  death,  the 
instrument  should  be  deemed  a  will.  It  is  the  application  of 
this  fundamental  rule,  however,  which  has  produced  the  larger 
part  of  the  uncertainty  which  surrounds  conveyances  of  the 
character  now  under  consideration,  and  while  all  courts  and 
jurists  are  agreed  upon  the  primary  proposition  that  the  mani- 
fest intent  of  the  grantor  must  govern  and  that  the  language 
used  must  fix  and  determine  this  intent,  yet  in  its  practical 
ap])Iication  to  conceded  facts  a  wide  diversity  of  opinion  is 
shown. 

Where  a  deed  conveys  a  present  interest  in  land,  such  deed 
cannot  be  treated  as  of  a  testamentary  character  and  its  limi- 
tations revoked  by  the  grantor.^i  Nor  will  the  fact  that  the 
right   of  possession   is  postponed   until   after  tlie   grantor's 

the  said   premises  as  long  as  the  the  grantors,  or  either    of    them, 

grantors  or  either  of   them   shall  shall  live,"  and   it  was  held  that 

live,"  held  not  to  create  a  present  the   provision   in   that   instrument 

estate  to  commence  in  futuro,  but  was  testamentary  in  its  character, 

to  be  in  the  nature  of  a  will  revo-  and  revocable  at  any  time  by  the 

cable     at     the     grantor's     option,  grantor. 

Leaver   v.    Gauss,     62     Iowa    314.  ''O  Simon  v.   Wildt,   84   Ky.   157; 

And  see  Watkins  v.  Dean,  10  Yerg.  Sharp  v.  Hall,  86  Ala.  110.     Inten- 

(Tenn.)    320;    Evans  v.  Smith,  28  tion  is  an  inferential  act.  and,  un- 

Ga.  98;  Craven  v.  Winter.  38  Iowa  less  announced  at  the  time  the  act 

478.    The  case  of  Leaver  v.  Gauss,  is  done,  is  not  susceptible  of  direct 

62  Iowa  314,  used  the  language,  "to  proof. 

commence  after  the  death   of  the  '"  Oilman  v.  Master,  42  Ala.  365; 

grantors,    it   being   understood   be-  Gage  v.  Gage,  12  N.  H.  371. 

tween  the  grantors  and  the  grantee  "'  Mattocks  v.  Brown,  103  Pa.  St. 

that  the  grantee  shall  have  no  in-  16. 
terest  in  the  premises  as  long  as 


430  CONSTRUCTION    OF    DEEDS. 

decease  affect  its  openitiou  as  an  absolute  j^rautJ-  There  are 
authorities  which  hold  that  a  writiuj^  may  be  partly  a  deed 
and  partly  a  will/^  but,  as  a  rule,  any  instrument  which  passes 
the  rij^lit  of  propert}'  durinji;  the  donor's  life  time,  althouj^h 
of  an  alleged  testamentary  character,  being  not  absolutely  a 
will,  must  be  regarded  as  a  deed,  for  there  is  no  middle 
ground.'^^ 

There  is  another  class  of  cases  which  hold  that,  inasmuch 
as  livery  of  seizin  has  been  abolished  and  deeds  of  feoffment 
have  fallen  into  disuse,  the  reason  for  the  rule  which  formerly 
prevented  the  creation  of  estates  in.  futuro  without  some  inter- 
mediate estate  to  support  them  has  ceased,  and  with  it  the 
rule  itself  has  practically  ceased  to  have  any  effectJ'^  Under 
these  decisions,  where  there  has  been  a  delivery  of  the  deed, 
notwithstanding  that  by  express  terms  it  is  to  have  no  effect 
until  the  grantor's  death,  it  will  still  be  considered  as  a  valid 
and  operative  conveyance,  the  fee  in  remainder  vesting  on 
delivery.  The  theory  upon  which  these  decisions  proceed  is 
that,  where  parties  have  clearly  expressed  their  intentions  by 
their  written  contract,  and  it  is  based  on  a  sufficient  consider- 
ation, and  no  rule  of  public  policy  has  been  contravened,  such 
agreement  should  be  enforced  unless  some  stern  and  inflexible 
rule  of  law  prevents.'^*^  It  is  further  held  that  by  giving  effect 
to  such  conveyances  the  grantor  is  estopped  by  his  covenants, 
and  stands  seized  to  the  use  of  the  grantee  as  in  other  deeds 
of  bargain  and  sale;   that  such  a  course  simply  carries  into 

72  A  conveyance  to  a  trustee,  the  highly  artificial  rules  which  then 
property  to  be  applied  to  the  grant-  prevailed  there  can  be  no  doubt 
or's  support  and  maintenance  dur-  that  there  should  be  not  only  a 
ing  life,  and  at  his  death  to  be  particular  estate  to  support  the  re- 
divided  among  certain  named  per-  mainder,  but  livery  of  seizin  to  the 
sons,  is  a  deed  and  not  a  will,  and  tenant.  As  a  remainder-man  was 
cannot  be  revoked.  It  takes  effect  not  entitled  to  possession,  and  the 
at  once.  McGuire  v.  Bank  of  Mo-  fee  could  not  vest  without  livery, 
bile,  42  Ala.  589.  to  avoid  the  difficulty  by  a  fiction 

73  See  Burlington  University  v.  the  livery  was  made  to  the  tenant 
Barrett,  22  Iowa  60.  holding  the  particular  estate;  and 

'■^  Hileman  v.  Bouslaugh,  13  Pa.  that  was  held  to  be  livery  of  seizin 

St.  344.  to  the  remainder-man. 

'■'  If,    as    it   was   at   the   ancient        ^o  Shackelton    v.    Sebree,    86    111. 

common  law,  livery  of  seizin  were  616;    Ferguson  v.  Mason,  60  Wis. 

indispensable  to  the  investiture  of  377. 
title  in  the  grantee,  then  under  the 


CONSTRUCTION    OF    DEEDS. 


431 


effect  (lie  intention  of  the  jtaitics,  working  injury  to  none  and 
iufrin^inji  n(t  i-iilc  of  jiulilic  jiolicyj^ 

•5  363.  Deed  construed  as  a  mortgage.  The  authorities  all 
ai^ree  in  dcclaiinj;  that  a  deed  absolute  upon  its  face,  but 
intended  as  a  security  for  the  payment  of  money,  is  only  a 
mortj^age.  This  rule  is  allowed  to  prevail,  even  at  law,  where 
the  deed  is  accompanied  by  a  separate  contemporaneous  agree- 
ment in  writing  to  recouvey  upon  the  payment  of  the  debt,'^'* 
while  in  equity  parol  evidence  may  be  resorted  to  to  prove  the 
facts  which  establish  the  true  nature  of  the  transaction.'^''  It 
is  to  be  observed,  however,  that  the  rule  of  equity  which 
admits  parol  evidence  in  cases  of  this  kind  prevails  only  to 
the  extent  of  allowing  evidence  of  the  intention  of  the  parties 
at  the  time  of  the  execution  of  the  deed,  and  the  proof  must 
establish  an  agreement  substantially  contemporaneous  there- 
with.'^'^ The  i)roof  of  such  agreement  cannot  rest  merely  on 
the  subsequent  admissions  of  the  mortgagee  ;**i  nor  does  it 
seem  that  a  subsequent  mutual  agreement  to  that  effect  is 
enough  unless  it  be  in  writing  and  formally  executed.^^ 


77  Shackelton  v.  Sebree,  86  111. 
C16.  It  has  been  held  that  where 
a  deed  contains  a  provision  that  it 
is  not  to  take  effect  and  operate 
as  a  conveyance  until  the  grantor's 
decease,  and  not  then  if  the  grantee 
does  not  survive  him,  but  if  the 
grantee  does  survive  it  is  to  con- 
vey the  premises  in  fee-simple, 
with  words  appropriate  and  con- 
sistent with  this  provision  in  the 
habendum  and  covenants,  it  will  be 
upheld  as  creating  a  feoffment  to 
commence  in  futuro,  and  will  give 
the  estate  in  fee-simple  to  the 
grantee  on  the  happening  of  the 
contingency  named;  the  execution 
and  record  of  the  deed  operating 
in  the  same  manner  as  a  livery  of 
seizin  at  the  grantor's  decease.  Ab- 
bott V.  Holway,  72  Me.  298. 

7sTeal  V.  Walker,  111  U.  S.  242; 
Lanahan  v.  Sears,  102  U.  S.  318; 
Haines  v.  Thompson,  70  Pa.  St. 
434.     But  on   a  sale  and   deed   of 


lands  an  agreement,  which  is  only 
an  independent  contract  by  the 
vendee  to  reconvey  the  lands  to  the 
vendor  on  certain  conditions,  does 
not  make  the  deed  a  mortgage. 
Horbach  v.  Hill,  112  U.  S.  144. 

71' Raynor  v.  Lyons,  37  Cal.  452; 
Moffitt  v.  Rynd,  69  Pa.  St.  380; 
Lindman  v.  Cummings,  57  111.  195; 
Morris  v.  Nixon,  1  How.  (U.  S. ) 
118;  Pugh  v.  Davis,  96  U.  S.  332; 
Freeman  v.  Wilson,  51  Miss.  329; 
Campbell  v.  Dearborn,  109  Mass. 
130;  Perkins  v.  West,  55  Vt.  265. 

^'^  Barrett  v.  Carter,  3  Lans. 
(N.  Y.)  68;  Baugher  v.  Merryman, 
32  Md.  185;  Sharp  v.  Smitherman, 
85  111.  153;  Frink  v.  Adams,  36 
N.  J.  Eq.  485;  Reed  v.  Reed,  75  Me. 
264. 

81  Plummer  v.  Guthrie,  76  Pa.  St, 
441. 

**-  Barrett  v.  Carter,  3  Lans. 
(N.  Y.)   68. 


432  CONSTRUCTION    OF    DEEDS. 

If  the  couveyance  is  in  fee,  with  a  covenant  of  warranty, 
and  there  is  no  defeasance,  either  in  the  conveyance  or  a 
colhiteral  i)ai)<'r,  parol  evidence  to  show  that  it  was  intended 
to  secure  a  debt  and  to  operate  only  as  a  mortgage  must  be 
clear,  unequivocal  and  convincing,  or  the  presumption  that 
the  instrninciit  is  what  it  ])urj)orts  to  be  must  prevail.^^  In 
considering  the  question  whether  an  instrument  in  the  form 
of  a  deed  is  not  actually  a  mortgage,  it  is  important  to  inquire 
whether  the  consideration  was  adequate  to  induce  a  sale;^' 
and  the  presumption  in  favor  of  the  conveyance  will  be  greatly 
strengthened  where  it  appears  that  there  is  no  considerable 
disproportion  between  the  price  paid  and  the  value  of  the 
property.'*"' 

The  true  test  in  the  determination  of  questions  of  this  char- 
acter seems  to  be  w'hether  the  conveyance  was  made  as  a 
security  for  the  payment  of  money  or  the  performance  of  any 
act  or  condition;  and  if  the  transaction  resolves  itself  into  a 
security  it  is  in  equity  a  mortgage,  whatever  may  be  its 
form.^^ 

If  an  agreement  for  resale  is  made  contemporaneously  with 
the  conveyance,  coupled  with  express  conditions,  the  transac- 
tion may  be  either  a  mortgage  or  a  conditional  sale,  dependent 
on  the  intention  of  the  parties.  Usually,  if  there  has  been  an 
extinguishment  of  a  pre-existing  debt,  or  where  no  debt 
existed  or  continued  between  the  parties,  an  agreement  to 
repurchase  within  a  given  time  constitutes  a  conditional  sale 
and  not  a  mortgage.^^ 

The  language  which  the  parties  have  seen  fit  to  employ 
furnishes  the  best  evidence,  as  a  rule,  as  to  the  real  character 
of  the  transaction;  but  if  the  language  is  equivocal  the  attend- 
ing circumstances  may  be  resorted  to,  and  in  many  cases  they 

83  Cadman  v.  Peter,  118  U.  S.  73;  186;  Cooper  v.  Brock.  41  Mich.  488 
Hyatt  v.    Cochran,    37    Iowa   309;  Hooper   v.    Bailey,    28    Miss.    328 
Sinclair  v.  Walker,  38   Iowa  575;  Slowey  v.  McMurray,  27  Mo.  113 
Haynes  V.  Swann,  6  Heisk.  (Tenn.)  Carr  v.  Carr,  52  N.  Y.  251;   Mont- 
560;  Helm  v.  Boyd,  124  111.  370.  gomery  v.  Spect,  55  Cal.  552;   Mc- 

84  Russell  V.   Southard,  12  How.  Namara   v.    Culver,    22    Kan.    661; 
(U.  S.)  139;  Helm  v.  Boyd,  124  111.  Freeman  v.  Wilson,  51  Miss.  329. 
370.  87  Mitchell   v.   Wellman,   80   Ala. 

85  Coyle  v.  Davis,  116  U.  S.  108.  16;  Murray  v.  Riley,  140  Mass.  490; 

86  Sutphen   v.    Cushman,   35    111,  Johnson     v.    Clark,    5    Ark.    340; 


CONSTRUCTION  OF  DEEDS.  433 

will  fiirniHli  (he  line  ciitf  rioii  l»y  wliicli  to  jiidj^c  whether  it 
is  an  absolute  coiiveyauee,  a  conditional  Hale  or  a  inortjxage.*'^ 

§  364.  Doctrine  of  relation.  The  doctrine  of  relation  is 
aj)j)lied  in  conveyances  of  land  lo  ((juitable  titles  which  suh- 
seciuentlj  mature,  either  by  operation  of  law  or  act  of  the 
parties,  into  lej^al  titles;  and  where  several  acts  concur  to 
make  a  conveyance,  estate  or  other  thinj;,  the  orij^inal  act 
will  be  preferred,  and  to  this  th(?  other  acts  will  have  relation. 
The  fiction  of  relation  is  that  the  intermediate  bona  fide 
alienee  of  the  incipient  interest  may  claim  (hat  the  jrrant 
inures  to  his  benefit  by  an  ex  post  facto  operation.  In  this 
way  he  receives  the  same  protection  at  law  that  a  court  of 
equity  could  alTord  him.  Thus,  the  assij^nee  of  a  certificate  of 
purchase  of  school  land,  the  purchase  money  bein<^  all  i)aid, 
conveyed  the  premises  by  quitclaim  deed;  a  few  days  after- 
ward he  received  the  patent,  and  it  was  held  that  the  le<;al 
title  passed  to  his  grantee.  So,  where  a  deed  is  made  in 
pursnance  of  a  recorded  land  contract,  it  relates  back  to  the 
date  of  the  contract  and  conveys  the  title  as  it  stood  at  the 
time  the  contract  was  recorded.^^  The  same  doctrine  also 
a]»plies  to  grants  of  unlocated  land,  the  subsequent  location 
operating  by  relation  to  the  original  grant.*'^  The  doctrine 
of  relation  is  a  fiction  of  law  adopted  by  the  courts  solely  for 
the  purpose  of  justice;  and,  where  several  proceedings  are 
reiiuired  to  perfect  a  conveyance  of  land,  it  is  only  applied 
for  the  security  and  protection  of  persons  who  stand  in  some 
privity  with  the  party  that  initiated  the  proctvdings  and 
accpiired  the  (Mjuitable  claim  or  right  to  the  title.  It  does  not 
affect  strangers  not  connecting  themselves  with  the  equitable 
claim  or  right  by  any  valid  transfer  from  the  original  or  any 
subs('(iu('nt  lioldiM'.'-'^ 

§  365.  lost  deeds.  A  lost  deed  can  only  be  established  by 
clear  and  satisfactory  proof."^  Where  the  deed  has  been  record- 

Henly    v.    Hotaling,    41     Cal.    22;  Logwood  v.   Hussey,   60  Ala.  417; 

Price  V.  Karnes,  59  111.  276;  Wilson  Slowey  v.  McMurray,  27  Mo.  113. 

V.  Carpenter.  62  Ind.  495.  sn  Welch  v.  Dutton.  79  111.  465; 

8."  See  Pitts  v.  Cable,  44  111.  105;  Snapp  v.  Pierce.  24  111.  156. 

Cornell     v.    Hall,    22     Mich.    377;  »•>  Deqiiindre  v.  Williams,  31  Ind. 

Rockwell    V.    Humphrey,    57    Wis.  444. 

414;     Hughes  V.   Sheaff.    19    Towa  »i  Gibson  T.Chouteau.  13  Wall. 92. 

343;    Rich   v.    Doane,   35   Vt.   125;  »■;  Loftin  v.  Loftin,  96  N.  C.  94. 
28 


434  CONSTRUCTION   OF   DEEDS. 

ed,  such  record  or  a  certified  copy  thereof  is  generally  the  best 
evidence  that  can  be  procured  f^  while  in  case  of  the  loss  or 
destruction  of  both  deed  and  record,  an  abstract  of  title,  made 
in  the  regular  course  of  business,  has,  under  the  aid  of  stiit- 
utes,  been  frequently  held  to  be  competent  proof."^  It  has 
also  been  held,  in  such  latter  event,  that  a  copy  of  the  original 
deed  may  be  proved  by  the  person  who  made  the  copy.-'^' 

§  366.  Forged  deed.  Any  document  relied  upon  as  a  muni- 
ment of  title  must,  as  a  rule,  be  susceptible  of  being  proved, 
unless  it  ante-dates  the  period  of  limitation,  in  which  case,  in 
the  absence  of  other  controlling  circumstances,  it  may  be 
offered  under  the  rules  relating  to  ancient  deeds. 

A  forged  deed,  having  never  had  a  legal  inception,  is  abso- 
lutely void.''^  It  conveys  no  right,  title  or  interest,  nor  will 
the  recording  of  same  affect  the  legal  rights  of  the  parties 
concerned.^^  Where  the  forgery  is  established  the  question  of 
good  faith  is  not  involved,*^*  and  it  is  immaterial  that  a  pur- 
chaser may  have  entered  thereunder  without  notice  of  the 
infirmity.  Yet  where  there  has  been  an  actual  adverse  posses- 
sion, commenced  without  notice  and  in  good  faith,  and  such 
possession  has  continued  uninterruptedly  for  the  statutory 
period,  such  deed  may  be  effective  as  an  estoppel  considered 
in  connection  with  the  statute  of  limitations. 

93  The  record  of  a  deed  is  prima  as  Fletcher  v.  Home,  75  Ga.  134. 
facie  evidence  of  the  genuineness,  9«  Haight  v.  Vallet,  89  Cal.  245; 
due  execution  and  delivery  of  the  Meley  v.  Collins,  41  Cal.  663. 
original.     Burroughs  v.  De  Couts,  o^  Haight  v.  Vallet,  89  Cal.  245; 
70  Cal.  361.  Pry  v.  Pry,  109  111.  466. 

94  Heinson  v.  Lamb,  117  111.  549.  98  McGinn  v.  Tobey,  62  Mich.  252. 


CHArTER   XIV. 


THE  LAND  CONVEYED. 


i367. 

General  principles. 

§384. 

Continued — Exclusion  from 

368. 

Ambiguous    descriptions. 

grant. 

369. 

Inconsistent  descriptions. 

385. 

Continued — Where    grantor 

370. 

General  and  spdcial  descrip- 

is without  title. 

tion. 

386. 

Effect  of  grant  bounded  on 

371. 

Specific  parts. 

highway. 

372. 

Identification  after  convey- 

387. 

Exception  of  highway. 

ance. 

388. 

Streams  and  waterways. 

373. 

Evidence  aliunde. 

389. 

Continued — Construction  of 

374. 

Construction  by  the  parties. 

descriptive  terms. 

375. 

Reference  to  plat. 

390. 

Lakes  and  ponds. 

376. 

Survey  governs  plat. 

391. 

Continued — Artificial 

377. 

Identification   of   boundary 

waters. 

lines. 

392. 

High-water  mark. 

378. 

Marked  lines. 

393. 

Tidal  waters. 

379. 

Boundary       by       "parallel 

394. 

Riparian    boundary    as    af- 

lines." 

fected  by  plat. 

380. 

Estoppel  in  pais. 

395. 

Exception     from     riparian 

381. 

Statements  of  quantity. 

grant. 

382. 

Streets  and  higliways. 

396. 

Mines  and  minerals. 

383. 

Continued — Unopened 
streets. 

397. 

Operation  of  erroneous  deed. 

§  367.  General  principles.  The  object  of  a  description  in 
a  deed  is  to  detine  what  the  parties  intend,  the  one  to  convey 
and  the  other  to  receive,  by  such  deed;  and  the  intention  of 
the  parties  is  to  be  deduced  from  the  instrument  of  convey- 
ance, as  in  the  case  of  any  other  contract.^  The  true  location 
of  the  premises  ma3'  be  ascertained  from  the  references  of  the 
deed — the  monuments,  points  and  lines  expressly  called  for, 
which  are  fixed  and  well  known,  or  are  capable  of  being  fixed 
with  certainty,  the  courses  and  distances,  and  the  whole 
description  p;enerally;  while  evidence  extrinsic  from  the  deed 
is  admissible  under  certain  circumstances,  and  may  be 
employed.2 


1  Long  V.  Wagoner,  47  Mo.  178; 
Kimball  v.  Semple,  25  Cal.  440. 

■■i  Fuller  V.  Carr,  33  N.  J.  L.  157; 
Kronenberger   v.    Hoffner,   44   Mo. 


185;  Jackson  v.  Barringer,  15 
Johns.  (N.  Y.)  471;  Child  v.  Picket, 
4  Me.  471 ;  Green  v.  Jordan.  83  Ala. 
220. 


435 


436  THE    LAND    CONVEYED. 

A  grant  must  describe  the  land  to  bo  conveyed,  and  the  sub- 
ject granted  must  be  identified  by  the  description  given  of 
it  in  the  instrument  itself;  if  the  land  be  so  inaccurately 
described  as  to  render  its  identity  wholly  uncertain,  the  grant 
is  void.^  Where  deeds  or  other  writings  are  referred  to  as 
parts  of  the  description  in  a  deed,  they  may  be  used  in 
evidence  in  aid  of  the  description;*  and  in  like  manner,  where 
a  map  or  plat  is  referred  to,  the  effect  is  the  same  as  if  it 
were  copied  into  the  deed/' 

A  grant  of  land  will  not  be  held  void  for  uncertainty  of 
description  if,  in  the  nature  of  things,  it  seems  possible  to 
obtain  testimony  by  means  of  which  the  particular  parcel 
granted  may  be  determined;*^  and  where  the  different  parts 
of  a  description  are  repugnant  and  contradictory  to  each 
other,  such  parts  may  be  rejected  and  such  retained  as  will 
leave  enough  to  designate  plainly  and  clearly  the  land  intended 
to  be  conveyed  J  Where  the  parties,  by  their  subsequent  acts, 
have  given  a  practical  construction  to  a  deed  having  in  some 
particulars  a  false  or  indefinite  description,  such  practical 
construction  by  the  parties  themselves  will  be  considered  by 
courts  in  construing  a  doubtful  clause.^ 

The  location  of  land  as  gathered  from  the  description  is 
governed  (1)  by  natural  objects  or  boundaries,  such  as  rivers, 
lakes,  creeks,  mountains,  etc.;  (2)  by  artificial  monuments, 
such  as  marked  trees,  lines,  stakes,  etc.;  and  (3)  by  course  and 

sBoardman     v.     Reed,     6     Pet.  Ct.),    494;    Murry     v.    Hobson,    10 

(U.  S.)  328;  Campbell  v.  Johnson,  Colo.  66;  Deal  v.  Cooper,  94  Mo.  62; 

44  Mo.  247;  Dull  v.  Blum,  68  Tex.  Wade  v.  Deray,  50  Cal.  376;  White 

299;  Williams  v.  R.  R.  Co.  50  Wis.  v.  Gay,  9  N.  H.  126. 

71;  People  V.  Klumpke,  41  Cal.  263.  s  Hamm    v.    San    Francisco,    17 

•1  Cleveland    v.    Simnfis,    69    Tex.  Fed.  Rep.  119;   Lovejoy  v.  Lovett, 

153;    Powers    v.    Jackson,    50    Cal.  124   Mass.   270;    Simpson  v.   Blais- 

429;     Waterman    v.    Andrews,    14  dell,  85  Me.  199.     The  rule  of  in- 

R.  I.  589.  terpretation  which  rejects  errone- 

5  Noonan     v.     Braley,     2     Black  ous     particulars     of     description, 

(U.  S.),  499;  Burbach  v.  Schwein-  where     what    is    left    sufficiently 

ler,   56   Wis.   386;    Penry  v.   Rich-  identifies  the  subject  of  the  grant, 

ards,  52  Cal.  496.  is  adopted  in  aid  of  the  intention 

c  Blake    v.    Doherty,    5    Wheat,  of  the  grantor  as  gathered  from  the 

(U.   S.)    359;    Harkey  v.  Cain,   69  instrument  itself,  read  in  the  light 

Tex.  146;  Nixon  v.  Porter,  34  Miss,  of  the   circumstances  in  which   it 

697;  Pursley  v.  Hayes,  22  Iowa  11.  was  written;    and  does  not  apply 

7  Jackson  v.  Sprague,  1  Paine  (C.  where  the  description  of  the  land 


THE    LAND    CONVEYED.  437 

diHtancf.''  The  ti'uc  local  ion  of  land  is  asccrlaiiifd  by  the 
ai)j)licalion  of  ail  or  any  of  llicsc  rules  to  llic  jjaiticiilai"  case. 
And  when  (lic.y  lead  lo  conlrary  rcsnits  or  confusion,  that  rule 
must  be  adojjled  whicli  is  most  consistent  with  the  intention 
apparent  upon  the  face  of  the  <h'ed,  read  in  the  light  of  the 
surrounding;  facts  and  circunistances."'  Tt  is  a  general  rul(» 
of  construction  that  nionunicnts  control  courses  and  distances, 
and  estimates  of  quantity  are  usually  subordinated  to  both.^^ 
The  I'ule  that  fixed  monuments,  whether  natural  or  artificial, 
should  usually  be  given  preponderating  weight  and  preferred 
to  course  and  distance  is  obviously  reasonable,  as  they  are 
less  liable  to  error,'-  while  vaiiance  between  actual  and  esti- 
mated quantity  is  not  usually  a  material  circumstance;  and 
when  the  quantity  is  mentioned  in  addition  to  a  description 
of  the  boundaries,  or  other  certain  designation  of  the  land, 
without  an  express  covenant  that  it  contains  that  quantity, 
the  whole  is  considered  as  mere  description.  The  quantity, 
being  the  least  certain  part  of  the  descrijition,  must  yield  to 
the  definitely  determined  boundaries  or  lot-number  if  they  do 
not  agree.13 

The  calls  of  a  deed,  whether  natural  or  artificial,  are  further 
divided  into  two  classes,  one  termed  descriptive  or  directory, 
and  the  other  special  and  locative.  The  former,  though  con- 
sisting of  rivers,  lakes,  etc.,  must  yield  to  the  special  locative 
calls,  for  the  reason  that  the  latter,  consisting  of  the  particu- 
lar objects  upon  the  lines  or  corners  of  the  land,  are  intended 
to  indicate  the  precise  boundary  of  the  land,  about  which  the 
locator  and  surveyor  should  be,  and  are  presumed  to  be.  very 
exact.  On  the  other  hand,  the  fonner  are  generally  called 
for  without  any  care  for  exactness,  and  are  intended  merely 

in  the  deed  which  it  is  sought  to  u  Baldwin  v.  Brown,  17    N,  Y, 

reject  is  an  accurate  description  of  359;    Watson   v.   Jones,  85   Pa.   St. 

the  land  intended  by  the  parties  to  117;   Davis  v.  Rainsford,  17  Mass. 

be  conveyed.     Prentice  v.  Stearns,  207. 

113  U.  S.  435.  1-  Crampton    v.   Prince,   83   Ala. 

9  Stafford  v.  King,  30  Tex.   257;  246. 

Crampton  v.   Prince,  83  Ala.  246;  i3  Jackson     v.     Moore,     6     Cow. 

Adair  v.  White,  85  Cal.  314.  (N.  Y.)    705;   Ware  v.  Johnson.  66 

10  Stafford  V.  King,  30  Tex.  257;  Mo.  6C2;  Belden  v.  Seymour,  8 
Truett  V.  Adams,  66  Cal.  218;  Ly-  Conn.  19;  Dalton  v.  Rust,  22  Tex. 
man  v.  Looniis,  5  N.  H.  408;  Smith  133;  Clark  v.  Scammon,  62  Me.  47; 
V.  Dean,  15  Neb.  432,  Doyle  v.  Mellon,  15  R.  I.  523. 


438  THE    I^ND    CONVEYED. 

to  point  out  or  load  a  person  into  tlic  region  or  neighborhood 
of  the  tract,  and  hence  not  considered  as  entitled  to  much 
credit  in  locating  the  particular  boundaries  of  the  land.  When 
'  they  come  in  conflict  with  special  locative  calls,  they  must 
give  way  to  them.'* 

^  368.  Ambiguous  descriptions.  The  object  of  the  law  in 
permitting  a  construction  of  a  deed  is  to  ascertain  and  dis- 
cover the  intention  of  the  parties,  so  that  the  same,  if  possible, 
may  have  effect.  To  this  end  all  the  references  to  location 
and  description  of  the  land  intended  to  be  conveyed  are 
required  to  be  considered  in  order  to  arrive  at  the  true  mean- 
ing and  intention  of  the  instrument;  and  where  ambiguity 
can  only  be  dispelled  by  the  rejection  or  substitution  of  words 
or  phrases,  such  words  may  be  rejected  or  supplied  by  intend- 
ment in  order  to  give  effect  to  the  intention.^ ■'» 

A  deed  will  not  be  ambiguous  simply  because  it  does  not 
show  on  its  face  the  limits  or  quantity  of  the  land  granted, 
provided  it  refers  to  certain  well-known  objects  by  which 
such  limits  may  be  readily  ascertained.!*^ 

The  general  rule  is  that  a  deed  must  be  upheld  if  possible, 
and  the  terms  and  phraseology  of  description  will  be  inter- 
im Wright     V.     Mabry,     9     Yerg.        is  Simmons   v.   Jordan,   14   Wis. 
(Tenn.)    55;    Stafford  v.  King,  30    523;  and  see  Coats  v.  Taft,  12  Wis. 
Tex.  257.  388,   where   a   deed   described   the 

15  Hathaway  v.  Power,  6  Hill  land  conveyed  as  a  part  of  the  east 
(N.  Y.),  453.  A  call  in  a  deed  for  half  of  the  southwest  quarter  of 
a  block  of  a  certain  number  may  section  5,  township  3,  range  8,  be- 
be  rejected  and  another  block  sub-  ginning  on  the  south  line  of  said 
stituted  where  the  error  is  appar-  section  5,  on  the  east  side  of  the 
ent  from  the  whole  description,  bottom  land  of  the  creek,  far 
Murray  v.  Hobson,  10  Colo.  66.  So,  enough  up  the  bank  to  raise  a 
too,  where  a  call  in  a  deed  read  nine-foot  head  to  a  mill  standing 
"east  with,"  etc.,  and  it  was  mani-  by  the  bridge  on  section  8;  thence 
fest  that  this  meant  "east  parallel  up  the  bottom  land  one  hundred 
with,"  etc.,  held,  that  the  missing  rods,  to  include  all  the  bottom  land 
word  should  be  supplied  by  con-  on  both  sides  of  the  creek,  within 
struction.  Deal  v.  Cooper,  94  Mo.  the  above-mentioned  bounds.  Held, 
62.  And  see  Edwards  v.  Bowden,  that  the  deed  conveyed  the  bottom 
99  N.  C.  80;  White  v.  Gay,  9  N.  H.  lands  that  would  be  flowed 'by  such 
126;  Thatcher  v.  Rowland,  2  Met.  nine-foot  head,  on  each  side  of  the 
(Mass.)  41;  Reamer  v.  Nesmith,  34  creek,  for  the  distance  of  one  hun- 
Cal.  624;  Chandler  v.  Green,  69  Me.  dred  rods,  in  a  direct  line  from  the 
350;  Meyers  v.  Ladd,  26  111.  415.         place  of  beginning,  up  the  creek, 


THE    LAND    CONVEYED. 


439 


])r('t('(l  lo  tliiit  end  if  tliis  (iiii  i(';is(»ii,il»l v  lit-  done  consistently 
with  the  priiiciiilcs  jiiid  nilrs  oT  law.''  In  the  iurthoraDce  of 
this  iiilc  courts  arc  ever  inclined  to  exercise  a  wide  latitude 
in  construing;  descriptions,  and  lor  the  purpose  of  Kustainiu^  a 
grant  will  receive  extrinsic  evidence  to  identify  and  establish 
the  object  of  the  call  in  a  deed;  an<l  in  all  cases  where  an 
apparent  uncertainty  is  created,  but  which  may  be  removed 
by  judicious  construction  and  resort  to  parol  proof,  such  proof 
may  be  resorted  to.''* 

§  369.  Inconsistent  descriptions.  Following;  the  rule  that  a 
deed  is  to  be  construed  according;  to  the  intention  of  the 
parties  as  manifested  by  the  entire  instrument,  althoujjjh  such 
construction  may  not  comport  with  the  language  of  a  particu- 
lar part  of  it,'"  it  has  been  held  that,  where  a  deed  contains 
two  descriptions  equally  explicit  and  unambiguous,  but  incon- 
sistent with  each  other,  that  description  must  control  which 
best  expresses  the  intention  of  the  parties  as  manifested  by 
the  whole  instrument,  due  regard  being  had  to  the  attendant 
facts  and  circumstances.-*^  This  ditliculty  occurs  most  fre- 
quently where,  in  the  anxiety  of  the  draughtsman  to  insure 


to  a  point  where  the  water  would 
be  flowed,  on  the  same  side  of  the 
creek,  by  the  nine-foot  head  of 
water  at  the  mill  referred  to.  And 
see  Nixon  v.  Parker,  34  Miss.  697; 
Pursley  v.  Hayes,  22  Iowa,  11; 
Dorr  V.  School  District,  40  Ark.  237. 

IT  Edwards  v.  Bowden,  99  N.  C. 
80. 

i»As,  where  the  description  in  a 
deed  is  perfect  but  there  is  a  mis- 
take as  to  its  geographical  posi- 
tion, the  location  of  the  property 
geographically  may  be  rejected  as 
surplusage,  and  parol  evidence  i*e- 
ceived  to  identify  the  property  de- 
scribed in  the  deed.  Myers  v. 
Ladd,  26  111.  415.  So.  also,  where 
lands  are  accurately  and  minutely 
described  by  metes  and  bounds, 
courses  and  distances,  and  other 
indicia  of  location,  as  the  owner- 
ship of  adjoining  lands,  etc.,  but 
a  mistake  is  made  in  the  quarter 


section.  Thompson  v.  Joiies,  4  Wis. 
106.  A  deed  described  the  land 
thereby  conveyed  as  being  in 
"Linghton,"  in  the  county  of  Addi- 
son. Held,  that  the  name  "Lingh- 
ton" was  so  like  the  name  "Lin- 
coln," a  town  in  said  county,  and 
so  unlike  the  name  of  any  other 
town  in  the  county,  that  the  deed 
was  properly  admitted  in  evidence, 
in  connection  with  other  evidence 
showing  the  situation  and  circum- 
stances at  the  time,  as  tending  to 
show  that  the  Jocus  in  quo  was  the 
land  conveyed  by  the  deed.  Arm- 
strong V.  Colby,  47  Vt.  360. 

1"  Allen  v.  Holton,  20  Pick. 
(Mass.)  458;  White  v.  Gay,  9  N.  H. 
126;  Richardson  v.  Palmer,  38 
N.  H.  212. 

•JO  Driscoll  v.  Green,  49  N.  H.  101; 
Wade  v.  Deray,  50  Cal.  376;  Bene- 
dict v.  Gaylord,  11  Conn.  332. 


440  THE    LAND    CONVEYED. 

absolute  accuracy,  one  description  is,  as  it  were,  superadded 
to  the  other,  and  one  description  beint;-  complete  and  sutlicient 
in  itself,  while  the  other,  which  is  subordinate  or  superadded, 
is  incorrect.  In  such  event  the  incorrect  description,  or 
feature  or  circumstance  of  the  description,  may  be  rejected  as 
surplusage,  and  the  complete  and  correct  description  allowed 
to  stand  alone.^i 

Words  of  general  description,  if  inconsistent  with  the 
description  by  metes  and  bounds,  should  be  rejected  ;2-  and, 
generally,  whenever  several  particulars  are  mentioned,  those 
found  erroneous  may  be  disregarded,  and  the  unambiguous 
and  correct  may  be  relied  on  to  determine  the  rights  of  the 
parties.23 

Course  and  distance,  while  furnishing  in  most  instances 
reliable  data  from  which  to  ascertain  the  exact  dimensions  of 
the  land  granted,  must  nevertheless  be  set  aside  where  from 
other  parts  of  the  description  or  from  descriptions  superadded 
a  clearly  different  intent  is  manifested,-^  or  where  the  calls  of 
the  courses  will  not  close.-^ 

§  370.  General  and  special  description.  In  the  construction 
of  a  written  instrument  it  is  an  established  rule  that  a  par- 
ticular specification  will  exclude  things  not  specified,  and 
control  matters  alluded  to  only  in  general  terms.  This  rule 
may  be  applied  to  the  description  of  the  property  conveyed  as 
well  as  to  other  provisions  of  the  deed;   and  where  lands  are 

21  Doane  V.  Wilcutt,  82  Mass.  368;  the  word  "northwesterly"  should 
Kruse  v.  Wilson,  79  111.  233;  Dris-  be  rejected  as  surplusage.  Kruse 
coll  V.  Green,  59  N.  'H.  101;    Ray-    v.  Wilson,  79  111.  233. 

mond  V.  Coffey,  5  Oreg.  132.  24  Hampton  v.  Helms,  81  Mo.  631. 

22  Raymond  v.  Coffey,  5  Oreg.  25  a  deed  conveying  land  by 
132;  Benedict  v.  Gaylord,  11  Conn,  courses  and  distances  also  de- 
332.  scribed   it  as   "one    hundred    and 

23  Doane  v.  Wilcutt,  82  Mass.  368.  ninety-seven  acres,  being  the  south 
So  where  one  of  the  calls  in  the  end  of  a  tract  surveyed  by  virtue 
description  was  "thence  north-  of  a  warrant  in  the  name  of  H.  M., 
westerly  along  Moss  street,"  etc.,  being  the  remaining  part  of  said 
which,  taken  in  connection  with  tract  hitherto  unsold."  The  H.  M. 
other  calls,  was  senseless  and  un-  tract  contained  originally  four 
meaning,  but  which,  by  the  omis-  hundred  and  forty-seven  acres,  and 
sion  of  the  word  "northwesterly"  two  hundred  and  fifty  acres  had 
and  adapting  the  line  to  Moss  been  sold;  but  the  courses  and  dis- 
street,  answered  the  call  and  made  tances  did  not  correspond  to  the 
a  complete   description   held,  that  marks  on  the  ground,  and  would 


THE    LAND    CONVEYED.  441 

first  dcstribfd,  ^cucrall.v,  and  al'tcrwards  a  i)arti(ular  descrip- 
tion is  added,  the  latter  will  restrain  and  limit  the  general 
description.^*^ 

Ordinarily  a  general  description,  unequivocal  in  terms  and 
capable  of  exact  identification,  will  be  effectual  for  the  pur- 
pose of  conveying  all  the  land  to  which  it  applies ;27  y^t  in 
construing  a  deed  the  real  intent  is  to  be  gathered  from  the 
whole  descrij)li()n,  particular  as  well  as  general,  and  where 
there  is  obscurity  or  uncertainty  all  of  the  particulars  in  the 
description  are  to  be  taken  into  account.  In  a  case  of  this 
kind  the  particulars  describing  the  location  of  the  land,  the 
quantity,  its  commonly-known  designation,  or  other  similar 
incidents,  are  as  much  a  part  of  the  description  of  the  subject 
of  the  conveyance  as  the  designation  by  lot-number  or  platted 
title.^'^  Where  the  particulars  unmistakably  show  the  general 
description  to  be  false,  such  general  description,  or  so  much 
of  it  as  is  clearly  repugnant  to  the  grant,  may  be  rejected, 
and,  under  the  familiar  rule  that  where  the  description  is 
ambiguous,  or  there  is  inconsistency  in  the  several  particulars, 
words,  if  necessary,  may  be  supplied  by  intendment,  and 
particular  clauses  and  provisions  qualified  and  transposed, 
while  such  words  as  may  reasonably  appear  to  have  been 
omitted  by  inadvertence  may  be  introduced.--'     Thus,  where 

not   close   unless    several   changes  Jackson    v.    McConnell,    19    Wend, 

were  made.     //e7d,  that  the  descrip-  (N.  Y.)  175. 

tive  phrase  "the  south  end,"  etc.,  -^  Case  v.  Dexter,  106  N.  Y.  548; 

governed.     Duncan  v.  Madara,  106  and  see  Ousby  v.  Jones,  73  N.  Y. 

Pa.  St.  562.  621. 

-'•  Thorndike  v.  Richards,  13  Me.  -"•  Murray  v.  Hobson,  10  Colo.  66; 

430;   Barney    v.    Miller,    12    Iowa,  Deal  v.  Cooper,  94  Mo.  62;  Case  v. 

460;  Case  v.  Dexter,  106  N.  Y.  548;  Dexter,  106  N.  Y.  548;   Edwards  v. 

Doe  v.  Porter,  3  Ark.  18;  Smith  v.  Bowden,   99   N.   C.   80.     A  grantor 

Strong,  14  Pick.  (Mass.)  128;  Sikes  conveyed  a  large  number  of  lots  of 

v.    Shows,    74    Ala.    382;    Gano   v.  land,  described  as  lying  in  a  tract 

Aldridge,  27  Ind.  294;  Bell  v.  Saw-  of   wild   land,   called    the    Boston 

yer,  32  N.  H.  72;   and  see  Bolt  v.  Purchase.     Among  these  lots  were 

Burnell,    11     Mass.    167;    Bates   v.  two  described   as   long  lots,   num- 

Foster,  59  Me.  157;  Bent  v.  Rogers,  bered    15   and    43,   containing   one 

137  Mass.  192;  Chapman  v.  Crooks,  hundred    and     forty    acres    each, 

41  Mich.  595.  more  or  less,  which  were  originally 

27  Stanley  v.  Green,  12  Cal.  148;  included  in  the  survej's  of  the  Bos- 
Bower  v.  Earl,  18  Mich.  367;  Foss  ton  Purchase,  but  v.hifh  it  had 
v.    Crisp,    20     Pick.    (Mass.)    121;  been  ascertained  previously  to  the 


442  THE    LAND    CONVEYED. 

a  general  description  wliicli  describes  a  tract  of  land  by  its 
platted  number  is  followed  by  specification  of  quantity  and 
geograi)liical  location,  all  describing  a  much  smaller  area,  and 
showing  such  general  description  to  be  mistaken  or  false,  it 
is  fair  to  suppose  that  the  words  "part  of"  or  words  of  similar 
import  were  inadvertently  omitted  from  such  general  descri])- 
lion.  It  is  true  that  a  variance  between  the  actual  and  esti- 
mated quantity  of  land  is  not  usually  a  material  circumstance, 
yet  in  some  cases  it  may  become  an  important  element  in 
determining  the  intention  of  the  parties  to  the  grant;  and, 
where  the  estimate  of  quantity  in  the  particulars  and  the 
actual  area  of  the  land  covered  by  the  general  description 
is  grossly  disproportionate,  the  statement  of  quantity  becomes 
very  significant. 

So,  too,  natural  monuments,  as  v/ater-ways,  or  other  physical 
landmarks,  will  have  a  preponderating  weight  in  determining 
questions  of  this  kind  and  in  ascertaining  the  amount  of  land 
actually  embraced  in  the  whole  description.  Nor  would  this 
be  a  case  of  cutting  down  an  interest  or  estate  once  clearly 
given  by  subsequent  indefinite  or  ambiguous  language;  for 
all  of  the  several  items  in  a  deed  of  this  character  are  to  be 
regarded  as  but  parts  of  one  single  description,  and  the  sole 
question  is.  What  land  is  embraced  therein? 

Neither  is  a  particular  description  in  a  deed  necessarily 
enlarged  by  a  succeeding  general  description  by  way  of  refer- 
ence to  and  adoption  of  the  description  of  a  former  convey- 
ance; and  this  rule  has  been  held  to  apply  even  where  the 
language  is  that  the  grantor  ''intended  to  convey  the  same 
and  identical  land  conveyed  by  said"  former  deed.^^  While 
the  intent  of  the  parties,  so  far  as  such  intent  can  be  collected 
from  the  whole  instrument,  must  receive  effect  if  possible, 
yet  under  the  established  rules  of  construction  applying  to 
conveyances  of  real  property,  nothing  will  pass  by  a  deed 

date  of  the  deed,  were  adjoining  30  Brunswick  Savings  Inst.  v. 
thereto.  Held,  that  the  words  of  Grossman,  76  Me.  577;  Thayer  v. 
the  deed  were  sufficient  to  pass  the  Finton,  108  N.  Y.  394;  Green  Bay- 
two  long  lots,  for  the  words  of  Canal  Co.  v.  Hewett,  55  Wis.  96; 
general  description  are  controlled  Clement  v.  Bank,  61  Vt.  298;  but 
by  the  particular  description,  see  Plummer  v.  Gould,  92  Mich.  1. 
Smith  V.  Strong,  14  Pick.  (Mass.) 
128. 


THE    I^ND    CONVEYED.  443 

('Xc('j)l  wliat  is  (Icscrihcd  tlifi-ciii,  whatever  the  iuteiitiou  of 
llie  jiarties  may  have  been.-'''  TIeiice,  when  a  deed  contains 
an  accurate  desciijttion  by  pcnnanent  boiiiularies  caj)able  of 
beinj^  asjcertaincd,  a  ;:;{'neial  refei-ence  to  the  premises,  in  addi- 
tion, as  that  the  hind  is  then  in  the  jtossession  of  the  grantor 
or  grantee,  or  referring  to  descriptions  in  former  deeds,  or  a 
designation  by  name  or  locality,  will  not  have  the  effect  to 
enlarge  the  grant  or  pass  title  to  lands  outside  of  the  bound- 
aries given.-'^-  Where  it  is  not  disputed  that  the  boundaries 
as  given  in  the  particular  description  are  deUuite,  unambigu- 
ous and  certain,  and  describe  a  known  and  definite  parcel,  the 
addition  of  a  genei'al  statement  of  quantity  is  immaterial;  and 
but  little  weight  can  be  ascribed  to  such  statement  when 
followed  by  the  words  "more  or  less,"  According  to  settled 
rules,  such  statement  cannot  be  held  to  affect  the  (juantity  of 
land  included  within  specified  boundaries  when  they  are 
clearly  and  certainh^  ascertainable.  Xor  will  the  fact  that 
the  land  described  may  have  been  in  the  possession  of  the 
grantor,  or  was  conveyed  to  him  by  a  particular  conveyance, 
as  stated  in  the  general  description,  alter  the  case;  for  while 
it  may  be  said  that  it  does  not  cover  all  the  land  so  possessed 
by  or  conveyed  to  him,  it  is  a  sufficient  answer  to  say  that  the 
deed  does  not  profess  to,  but  simply  attempts  to,  give  addi- 
tional particulars  as  to  the  property  actually  described,  and 
which,  as  far  as  they  are  given,  are  correctly  stated. 

In  such  a  case,  by  confining  the  grant  to  the  land  included 
within  the  boundaries,  meaning  and  effect  is  given  to  all  the 
language  of  the  deed  except  possibly  that  relating  to  quan- 
tity, which  is  comparatively  immaterial;  and  the  absurdity  is 
avoided  of  supposing  that  parties  intended  to  convey  distinct 
and  separate  tracts  of  laud  outside  of  the  boundaries  given  by 
using  inconclusive  and  general  language  following  a  particular 
description.    Where  by  the  express  language  of  the  descrip- 

•fi  Coleman  v.  Manhattan  Beach  mansion  and  land  thereto  belong- 

Co.  94  N.  Y.  229.  ing,"  it  was  held  that  this  general 

3'.:  Jones  V.  Smith.  73  N.  Y.  205.  clause  did  not  enlarge  the  grant, 
Thus,  where  a  deed  of  land,  after  although  alone  it  would  have  car- 
describing  it  by  metes  and  bounds,  ried  the  mansion-house  and  land, 
contained  the  words  "or  however  Tj'ler  v.  Hammond.  11  Pick. 
otherwise  the  same  is  bounded  or  (Mass.)  193. 
reputed  to  be  bounded,  being  the 


444  THE    LAND    CONVEYED. 

tion  the  parties  have  set  visible  and  known  limits  to  the  land 
intended  to  be  conveyed,  it  is  not  the  province  of  construction 
to  enlarp;o  this  description  and  embrace  within  it  other  lands 
not  mentioned."^*^ 

§  371.  Specific  parts.  Laud  is  often  described  as  a  specific 
part  of  a  larger  and  more  minutely-described  tract;  and  where 
no  inconsistency  is  manifest  in  such  description,  and  such 
specific  part  can  with  accuracy  be  identified  and  segregated 
from  such  larger  part,  the  description  will  be  effectual  to 
convey  the  land  actually  embraced  within  the  ascertained 
boundaries  of  such  parcel.  In  descriptions  of  land  which  refer 
to  the  government  surveys  such  description  by  specific  parts 
is  perhaps  as  accurate  as  any  that  could  possibly  be  employed, 
as  all  section  lines  are  based  on  true  meridians  and  standard 
parallels  of  latitude,  with  accurate  measurements  of  areas. 
The  Federal  government  in  parting  with  title  makes  use  of  the 
terms  *'half"  and  ''quarter"  in  describing  the  lands  conveyed, 
without  further  description  by  metes  and  bounds;  and  these 
terms  continue  to  be  employed  in  subsequent  transfers  as 
being  the  best  that  can  be  employed  to  denote  clearness  in 
description  and  accuracy  in  measurement. 

When  used  to  denote  the  legal  subdivisions  of  the  govern- 
ment surveys  the  employment  of  the  words  "half  and  "quar- 
ter" can  produce  no  ambiguity  or  uncertainty;  and  generally, 
where  the  tract  out  of  which  the  specific  part  is  to  be  taken 
has  a  well-defined  boundary,  no  inconvenience  or  uncertainty 
should  result  from  the  use  of  any  term  expressing  geometrical 
proportion. 

The  word  "half,"  when  used  in  describing  land,  should  be 
construed  as  meaning  "half"  in  quantity,  or  a  division  into 
equal  areas,^^  unless  the  context  or  surrounding  facts  and 
circumstances  show  a  contrary  intention.^''^     But  where  this 

33  Thayer   v.   Finton,   108   N.   Y.  grantor.     The   wood-lot   had   been 

394.  In  this  case  the  grantor  owned  conveyed  to  the  grantor  by  C.  as 

an   eighty-eight   acre   farm   and   a  well  as  the  farm.     Held,  that  the 

nine-acre     wood-lot    adjoining   the  wood-lot  did  not  pass  by  the  deed, 

farm.  His  deed  definitely  described  '■'•*  Hartford,  etc.  Co.  v.  Cambria 

the   boundaries  of  the   farm,   and  Co.  80  Mich.  491. 

then  added,  "containing  ninety-five  •"■n  Jones  v.  Pashby,  62  Mich.  614; 

acres,  more  or  less,  being  the  same  Owen  v.  Henderson,  16  "Wash.  39. 

premises"   conveyed   by   C.   to  the  In  this  case  the  vendor  sold  the 


THE    LAND    CONVEYED. 


445 


method  of  (l(*si<;na1i(tn  is  used,  followed  by  a  particular 
(Icstriplion,  the  latttM'  will  icstrain  and  limit  the  j^ciK'ial 
dosciiption.  So,  also,  a  subsequent  deed  of  a  specitic  part  of 
a  lar<;er  tract  from  which  parcels  have  been  sold  hy  particular 
descriptions  should  be  constru<'d  with  reference  to  the  particu- 
lar descriptions  in  such  former  deeds.-^" 

Probably  the  greatest  amount  of  difficulty  is  experienced 
in  sales  of  land  by  acreage  where  the  descriplion  is  rendered 
uncertain  by  indefinite  location.  As,  where  the  land  is 
described  as  the  ''South  part"  of  a  specified  tract  cont. lining 
a  detinite  number  of  acres.  As  a  rule,  however,  courts  will 
endeavor  to  reconcile  any  inconsistencies  that  may  appear 
as  well  as  sujtjjly  deficiencies,  and  where  a  boundary  can  be 
sup{»Iit'd  in  api)arent  conformity  to  the  intention  of  the  parties 
this  may  be  done.^^ 

A  grant  of  a  specific  but  unlocated  part  of  a  larger  tract 
will  not  for  that  reason  be  held  void  for  uncertainty,  provided 
a  right  of  election  is  given  and  a  subsequent  location  made 
under  and  in  pursuance  of  such  right.^*  It  would  seem,  how- 
ever, that  a  deed  purporting  to  describe  a  specific  tract  or 
parcel  of  land,  giving  the  number  of  acres  and  calling  it  part 


west  half  of  a  fractional  lot,  a  part 
of  the  lot  being  cut  off  by  a  bay, 
and  the  court  held  the  purchaser 
entitled  to  an  equal  half  of  the  lot 
in  area  and  not  the  part  lying  west 
of  a  line  drawn  north  and  south 
midway  and  parallel  to  the  side 
lines  of  the  lot. 

•"!«  As  where  the  owner  of  a  tri- 
angular lot  conveyed  what  he 
called  the  "north  half"  of  it,  fol- 
lowing this  designation  by  a  par- 
ticular description,  and  then  sub- 
sequently conveyed  the  "south 
half"  of  the  lot.  Grandy  v.  Casey, 
93  Mo.  .595. 

:'T  Thus,  a  description  calling  for 
the  "south  part  of  Sec.  5,  3,  14,  R. 
4  east,  two  hundred  and  twenty-five 
acres,"  was  held  not  void  for  un- 
certainty, but  the  lands  would  be 
located  by  laying  off  225  acres  hav- 
ing the  south,  east  and  west  sides 


of  the  section  for  boundaries,  with 
the  remaining  boundary  a  line  par- 
allel to  the  south  line  of  the  sec- 
tion and  sufficiently  distant  there- 
from to  include  the  requisite  quan- 
tity. See  Tierny  v.  Brown,  65  Miss. 
163. 

•■'«  Where  a  deed  granted  six  hun- 
dred acres  of  land  to  be  surveyed 
or  taken  off  a  large  tract,  and  by 
the  terms  of  an  instrument  re- 
ferred to  in  the  deed  the  tracts 
were  to  be  divided  into  lots  of  one 
hundred  acres  each,  and  an  elec- 
tion of  lots  was  given  to  the  gran- 
tees, which  they  subsequentlj' 
made,  it  was  held  that  though  by 
the  terms  of  the  deed  the  premises 
granted  were  undefined  and  uncer- 
tain, still  that  the  subsequent  lo- 
cation, in  pursuance  of  the  right  of 
election  given  by  the  deed,  ren- 
dered   that    certain    and    definite 


44G  THE    LAND    CONVEYED. 

of  a  larji;cr  tract,  but  which  fails  to  describe  the  tract  intended 
to  be  conveyed  or  any  tract,  does  not  convey  an  undivided 
interest  in  the  larger  tract,  nor  make  the  grantee  tenant  in 
common  with  the  grantor  in  the  latter.^^ 

§  372.  Identification  after  conveyance.  The  law  permits 
parties  to  give  a  practical  construction  to  their  deeds  and 
conversances  by  subsequent  acts,  and  it  has  been  held  that 
when  a  parcel  is  not  identified  by  the  instrument  of  convey- 
ance, or  so  imperfectly  designated  that  without  other  evidence 
it  would  be  void  for  ambiguity,  the  parties  may  afterwards 
survey  or  mark  out  the  land  intended  to  be  conveyed,  and  if 
possession  is  taken  of  such  part  this  will  serve  to  ascertain 
the  grant  and  give  effect  to  the  deed.'**' 

§  373.  Extrinsic  evidence.  Without  in  any  way  impeaching 
the  general  proposition  that  extrinsic  evidence  can  never  be 
received  to  contradict,  vary  or  control  a  written  instrument 
and  more  particularly  an  instrument  of  so  much  solemnity  as 
a  deed,  it  may  nevertheless  be  stated  that  whenever,  for  any 
cause  outside  of  a  deed,  there  arises  a  doubt  in  the  application 
of  the  descriptive  part  thereof,  evidence  dehors  the  writing 
may  be  resorted  to  for  the  purpose  of  identifying  the  subject 
of  the  instrument  and  the  understanding  or  intent  in  this 
respect  of  the  parties  thereto.  The  difficulty  in  the  application 
of  the  descriptive  portion  of  a  deed  to  external  objects  usually 
arises  from  what  is  called  a  latent  ambiguit}',  which  has  its 
origin  in  parol  testimony,  and  must  necessarily  be  solved  in 
the  same  way.'*^  Hence,  the  acts  and  admissions  of  the  parties, 
showing  a  construction  given  by  themselves,  may,  and,  from 
the  necessities  of  the  case,  must,  often  be  shown  where  a  deed 
is  indefinite,  uncertain  or  ambiguous  in  the  description  of  the 
location,  area  or  boundaries  of  the  land  conveyed.^^  ^q^  also, 
where  the  description  in  a  deed  appears  to  be  true  in  part  and 
false  in  part,  and  it  can  be  ascertained  from  references  in  the 

which   was   before   uncertain,   and  199;    Herrick  v.  Morrill,  37  Minn, 

vested  a  legal  title  in  the  specific  250;    and  see  Armstrong  v.  Mudd, 

parts  elected   to  be  taken   by  the  10  B.  Mon.  (Ky.)  144. 

grantees.     Corbin   v.    Jackson,    14  n  Grogan  v.  Vache,  45  Cal.  610. 

Wend.   (N.  Y.)   619.  42  Reed  v.  Proprietors  of  Locks, 

39  Grogan  v.  Vache,  45  Cal.  610.  8  How.  (U.S.)  274;    Deery  v.  Cray, 

40  Simpson   v.    Blaisdell,   85   Me.  10   Wall.    (U.   S.)    263;     Fuller  v. 


THE    LAND    CONVEYED.  447 

deed  to  other  conteiiiiioiaiy  documents  and  extrinsic  attend- 
ing facts  which  part  is  false,  so  much  of  the  description  as  is 
false  must  be  rejected;  and  the  practieal  construction  given 
by  the  parties  themselves  will  be  considered  in  construing  the 
doubtful  clause.^^  In  other  words,  where  the  intent  of  the 
parties  is  doubtful  on  the  face  of  the  deed  it  may  be  construed 
and  interpreted  in  the  light  of  attendant  extrinsic  facts  and 
surrounding  circumstances."*"* 

lUit  where  the  description  is  complete  in  itself  the  rule  first 
mentioned  applies,  and  the  description  cannot  be  controlled 
by  the  declarations  of  the  parties,  or  by  proof  of  negotiations 
or  agreements  on  which  the  deed  was  executed;"*^  nor  will 
parol  evidence  of  any  kind  be  received  to  establish  a  different 
location  or  another  designation.^*^ 

§  374.  Construction  by  the  parties.  As  has  been  stated, 
where  the  parties  to  a  deed  have  by  their  subsequent  acts 
given  a  practical  construction  to  an  indefinite  or  doubtful 
description  in  a  deed,  courts  will  usually  adopt  the  construc- 
tion so  given  ;^^  but  where  the  language  of  the  deed  admits 
of  only  one  construction,  and  the  location  of  the  premises 
intended  to  be  conveyed  is  clearly  ascertained  by  a  suflQcient 
description  by  courses,  distances  or  monuments,  it  cannot  be 
controlled  by  any  dillerent  exposition  derived  from  the  acts 
of  the  parties.  The  rule  is  applicable  only  where  the  language 
is  equivocal  and  the  location  is  made  doubtful,  either  by  the 
insuthcieucy  of  tlie  description  or  the  inconsistency  of  two  or 
more  parts  of  the  description.  In  such  latter  event  the  con- 
struction put  upon  the  deed  by  the  parties  in  locating  the 

Carr,   33   N.   J.   L.    157;     Clark   v.  S.)     1;     Benedict    v.    Gaylord,    11 

Powers,    45    111.    283;     Lovejoy    v.  Conn.  332. 

Lovett,  124  Mass.  270;    Lanman  v.  "'Jennings  v.  Brizeadine,  44  Mo. 

Crooker,  97  Ind.  163.  332;     Fratt  v.  Woodward,  32  Cal. 

*■'  Hamm   v.    San    Francisco,    17  219. 

Fed.  Rep.  119;    Homestead  Ass'n  v.  <7  Hamm    v.    San    Francisco,    17 

Lawnsdale,  19  Fed.  Rep.  291;    Tru-  Fed.  Rep.  119;    Deery  v.  Cray,  10 

ett  V.  Adams,  66  Cal.  618.  Wall.   (U.  S.)   263;    Fuller  v.  Carr, 

44Bortz  V.  Bortz,  48  Pa.  St.  382;  33  N.  J.  L.  157;    Stone  v.  Clark,  1 

Herman  v.  Roberts,  119  N.  Y.  37;  Met.  (Mass.)  378;    Lovejoy  v.  Lov- 

Herrick  v.  Morrill,  37  Minn.  250;  ett,     124     Mass.     270;      Truett     v. 

French  v.  Hayes,  43  N.  H.  30.  Adams,  66  Cal.  618. 

45  Parker  v.  Kane,  22  How.    (U. 


448  THE    LAND    CONVEYED. 

premises  may  be  resorted  to  as  an  aid  in  ascertaininj^  their 
intention.^^ 

§  375.  Reference  to  plat.  In  the  construction  of  a  deed  of 
conveyance,  where  the  kind  conveyed  is  described  by  reference 
to  a  certain  map  or  plan,  the  courses,  distances  and  other 
particulars  appearing  on  such  plat  are  to  be  as  much  regarded 
as  tlie  true  description  of  the  land  conveyed  as  they  would 
be  if  expressly  recited  in  the  deed.-*''  By  reference  the  j^lat 
becomes  in  fact  a  part  of  the  deed,  as  much  so  as  if  it  had 
been  copied  therein,'^^  and  the  purchaser  will  be  restricted  to 
the  boundaries  as  shown  thereby.''^  On  the  other  hand,  he 
will  have  a  right  to  claim  the  entire  area  shown  thereby  and 
the  boundaries  delineated  on  the  plat  will  overcome  figures 
of  dimension  whenever  such  figures  fail  to  coincide  with  the 
monuments.^2 

If  a  purchase  is  made  of  a  specific  lot  or  block  according 
to  a  plat,  and  a  further  description  by  metes  and  bounds  or 
courses  and  distances  is  added,  such  latter  description  will 
be  subordinate  to  the  description  of  the  land  by  its  block 
number,  and  in  case  of  conflict  the  former  will  prevail.^^ 

Words  of  reference  to  a  plat  employed  in  a  deed  are  usually, 

48  Jackson  v.  Perrine,  35  N.  J.  L.  its  east  and  west  lines  as  extend- 

137;  Bond  v.  Fay,  12  Allen  (Mass.)  ing  from  the  street  to  the  stream, 

86;     Lovejoy  v.   Lovett,   124   Mass.  and  upon  which  were  figures  pur- 

270;    Simpson  v.  Blaisdell,  85  Me.  porting  to  give  the  length  of  these 

199;    Herrick  v.  Morrill,  37  Minn,  lines,  but  in  fact  the  distance  from 

250.  the     street     to    the     stream    was 

40  Davis  v.   Rainsford,  17   Mass.  greater  than  the   length  of  these 

207;    Magoun  v.  Lapham,  21  Picli.  lines   as   thus   indicated,   the   plat 

(Mass.)    135;     Piper   v.    Connelly,  became  a  part  of  the  deed  for  the 

108  111.  646;    Burbach  v.  Schwein-  purposes    of    the    description    and 

ler,  56  Wis.  386;   Davidson  v.  Ar-  identification    of    the    land;     and 

ledge,  88  N.  C.  326.  under  the  rule  that  distances  must 

r.o  Piper  V.  Connelly,  108  111.  646;  yield    to    monuments    or    natural 

Hudson  V.  Irwin,  50  Cal.  450.  boundaries   called   for   in   a   deed, 

•'■1  McCormick    v.    Huse,     78     111.  the  conveyance  of  the  lot  accord- 

363;    Davidson  v.  Arledge,  88  N.  C.  ing  to   the   plat    included   all   the 

326.  land   between   the   street   and   the 

■>-  Where  a  man  conveyed  a  town  stream.     Nicolin  v.   Schneiderhan, 

lot    according    to   a    certain    plat,  37  Minn.  63. 

which     represented     the     lot     as  53  Masterson  v.  Munro,  105  Cal. 

bounded  on  the  north  by  a  street,  431. 
and  on  the  south  by  a  stream,  and 


THE    LAND    CONVEYED.  449 

if  not  always,  words  of  description  only  and  not  of  quality. 
They  serve  to  connect  the  deed  with  the  plat,  so  that  by 
apjilyinj;:  the  one  to  the  other  the  foiiner  may  be  rendered 
intcili'^ibk';  but  while  they  j,'ive  effect  to  the  expressions  of 
Ihc  deed  they  do  not  limit   them.^^ 

§  376.  Survey  governs  plat.  The  remarks  and  conclusions 
of  the  fore^oin^  i)aiaj^iaph  are  made  upon  the  presumption 
that  the  plat  truly  represents  the  survey.  The  marks  and 
lines  on  the  ground  constitute  the  actual  survey  of  land,  while 
the  draft  or  projection  is  merely  evidence  of  such  survey;'''^ 
and  where  any  (juestion  arises  with  regard  to  the  plat  or  the 
actual  location  of  the  lots  as  parceled  by  the  survey,  the 
marks,  stakes  and  monuments  upon  the  land,  according  to 
which  purchasers  have  bought  and  taken  possession,  will  con- 
trol and  govern  the  plat.^*^  The  actual  survey  rather  than  the 
plan  fixes  the  location  and  boundaries  of  the  lot.'^'^  Hence, 
])urchasers  of  town  lots  have  the  right  to  locate  their  lot  lines 
according  to  the  stakes  set  by  the  platter  or  subdivider  of  the 
lands,  and  no  subsequent  survey  can,  it  seems,  be  introduced 
to  unsettle  such  lines.  The  question  afterwards  is,  not  whether 
the  stakes  w^ere  where  they  should  have  been  in  order  to  make 
(liem  correspond  with  the  lot  lines  as  they  should  be  if  the 
I)latting  had  been  done  with  absolute  accuracy,  but  whether 
they  were  placed  by  authority  and  the  lots  were  purchased 
and  taken  possession  of  in  reliance  upon  them.  If  such  was 
the  case  they  must  govern,  notwithstanding  any  errors  in 
locating  them.'^^ 

In  cases  of  deficiency  or  excess  a  rule  has  been  fornmlated 
in  some  states  which,  to  a  certain  extent,  may  seem  to  mili- 
tate against  that  last  stated.  Thus,  if  the  lines  of  a  survey 
are,  found  to  be  either  shorter  or  longer  than  stated  in  the 

5*  Alton  v.  Illinois  Trans.  Co.  12  taken  actual  possession  of  any  spe- 

111.  88.  cific  part  of  the  land  as  and  for 

55  Riddlesburg,   etc.    Coal   Co.   v.  that    lot.      Marsh    v.    Mitchell,    25 

Rogers,   65   Pa.   St.   41G;     Bean   v.  Wis.  706. 

Bachelder,  78  Me.  184.  "'T  Bean  v.  Bachelder,  78  Me.  184. 

'"••The    rule    applied    to    a    case  ^s  Heaton  v.  Hodges,  14  Me.  66; 

where  the  evidence  did   not  show  Mills  v.  Penny,  74  Iowa  172;  John- 

that  a  lot  interpolated  upon  a  plat  son  v.  Archibald.  78  Tex.  96;  Flynn 

had  ever  been  sold  by  the  proprie-  v.  Glenny.  51  Mich.  580. 
tors,    or   that   any   one   had   ever 
29 


450  THE    I^ND    CONVEYED. 

plat  or  field  notes,  the  causes  contributing  to  such  mistake 
u  ill  be  presumed  to  have  operated  equally  in  all  parts  of  the 
original  survey,  and  every  lot  or  parcel  must  bear  the  burden 
or  receive  the  benefit  of  a  corrected  survey,  in  the  proportion 
which  their  respective  frontages,  as  stated  in  the  original  plat 
or  field  notes,  bears  to  the  whole  frontage  as  there  set  forth.-''^^ 
§  377.  Identification  of  boundary  lines.  The  primary  rule 
in  the  construction  of  descriptions  in  conveyances  of  lands  is 
that  whenever  fixed  and  known  monuments  as  w'ell  as  courses 
and  distances  are  given  to  describe  the  same  line,  and  there 
is  a  discrepancy  between  the  two,  the  monuments  so  called 
for  must  prevail  over  the  courses  and  distances,*'^  upon  the 
t  heory  that  it  is  more  likely  that  there  would  be  a  mistake  or 
a  misunderstanding  about  the  course  or  the  distance  than 
about  the  monument.*5i  Tj^jg  theory  proceeds  on  the  assump- 
tion that  in  all  cases  of  division  or  subdivision  there  has  been 
an  actual  survey  and  the  reason  of  the  rule  is  therefore  ap- 
parent. Slo,  also,  it  has  been  held  that  points  and  lines  ex- 
pressly called  for,  w^hich  are  fixed  and  well  known,  or  are 
capable  of  being  fixed  with  certainty,  should  govera  and  con- 
trol the  courses  and  distances  ;^2  ^nd  further,  that  where 
there  are  no  express  calls  that  determine  a  line  with  certainty, 
evidence  aliunde  is  admissible  to  show  where  the  line  was  act- 
ually run  to  which  the  deed  alludes  or  to  which  it  must  have 
reference;  and  its  location  so  fixed  by  extrinsic  evidence  will 
control  the  courses  and  distances  named  in  the  deed.^^ 

59  Pereles  v.  Magoon,  78  Wis.  268.  As  a  general  rule,  in  the  lo- 
27;    James  v.  Drew,  68  Miss.  518.  cation  of  lands  described  in  a  deed, 

60  Kronenberger  v.  Hoffner,  44  natural  objects  called  for  therein 
Mo.  185;  Keenan  v.  Cavanaugh,  ■ — such  as  mountains,  lakes,  rivers, 
44  Vt.  268;  Welder  v.  Hunt,  34  rocks  and  the  like — control  artifi- 
Tex.  44;  West  v.  Shaw,  67  N.  C.  cial  objects,  such  as  marked  lines, 
489;  Barclay  v.  Howell,  6  Pet.  (U.  marked  trees,  stakes,  etc.  Ayers  v. 
S.)    498;     Morrow  v.   Whitney,   95  Watson,  113  U.  S.  594. 

U.  S.  551.     Thus,  if  marked  trees  «-  Kronenberger    v.    Hoffner,    44 

or   corners  be   found    conformably  Mo.    185;      Howell    v.    Merrill,    30 

to  the  calls  of  a  deed,  or  if  other  Mich.  283;    Hoar  v.  Goulding,  116 

natural  objects  be  called   for,  dis-  Mass.  132;    Ayers  v.  Watson,  113 

tance  must  be  lengthened  or  short-  U.    S.    594.      Compare    Kellogg    v. 

ened  and  courses  varied  so  as  to  Mullen,  45  Mo.  571;    Walsh  v.  Hill, 

conform  to  those  objects.     Mclver  38   Cal.   481. 

T.  Walker,  9  Cranch  (U.  S.)  173.  e3  Kronenberger    v.    Hoffner,    44 

61  Keenan  v.  Cavanaugh,   44  Vt.  Mo.    185;     Hoar   v.   Goulding,   116 


THE    LAND    CONVEYED.  451 

ir  no  moiiiiiiiciits  ai'f  iiiciilioiicd  in  a  deed,  or  ii'  montionod 
tlicif  cxislence  and  location  ai-c  not  jji-ovcd.  courses  and  din- 
lanccs  will  j;()V<'rn;'"  and  so  in  respect  to  lines,  foi-  it  is  only 
wlien  lines  called  for  in  a  deed  ai-e  actually  marked  and  can 
be  ideiitifl"d  that  they  control  calls  tor  course  and  distance; 
and  when  the  lines  called  foi'  are  of  doubtful  identity,  course 
and  distance  should  be  resorted  to  as  furnishing-  the  bcs^-t  evi- 
dence the  ease  is  susceptible  of."-''  But  while  the  rule  is  un- 
doubted that  monuments,  natural  or  artificial,  rather  than 
courses  and  distances,  control  in  the  construction  of  a  deed  of 
conveyance,  such  rule  will  not  be  enforced  when  the  instru- 
ment would  be  thereby  defeated,  and  when  the  rejection  of  a 
call  or  monument  would  reconcile  other  parts  of  the  descrip- 
tion, and  leave  enough  to  identify  the  land.^'^'  Such  rule,  when 
apjilied  as  a  rule  of  construction,  must  be  considered  as  (piali- 
lled  by  the  further  rule  that  the  entire  description  must  b(; 
read,  and,  if  there  are  words  of  qualification  or  explanation, 
they  must  be  considered  in  order  to  arrive  at  the  intention  of 
the  parties.^^ 

In  all  disputes  respecting  boundaries  of  governmental 
divisions  the  lines  established  by  the  original  survey  must  be 
followed,  even  though  made  on  a  wrong  magnetic  variation, 
and  it  is  only  when  lost  lines  and  corners  are  to  be  restored 
that  allowance  can  be  made  for  variation  from  the  true 
meridian.^'^ 

It  is  often  stated,  as  a  general  proposition,  that  course  con- 
trols distance,  yet  there  is  no  universal  rule  that  obliges  us  to 
jtrefer  one  to  the  other;  and  when  natural  and  ascertained 
objects  are  wanting,  and  the  course  and  distance  cannot  be 
reconciled,  one  or  the  other  may  be  preferred  according  to  cir- 
cumstances.'^^ 

Mass.  132;    Deery  v.  Cray,  10  Wall,  and   must  be  used.     Chinoweth  v. 

(U.  S.)    263.     Compare  Putnam  v.  Haskell.  3  Pet.    (U.  S.)   92. 

Bond,  100  Mass.  58.  "''Browning  v.  Atkinson,  37  Tex. 

••■1  Bagley   v.    Morrill,    46   Vt.   94.  633. 

As  where  a  grant  is  made  which  '■'<  White  v.  Luning,  93  U.  S.  515. 

describes  the  land   by  natural   ob-  ><''  Higginbotham  v.  Stoddard,  16 

jects     not     distinguishable     from  N.  Y.  Sup.  Ct.  1. 

others   of   the    same   kind,   course  •'«  Taylor  v.  Fomby.  116  Ala.  621. 

and     distance,     though     not     safe  "!>  Preston  v.  Bowmar,  6  Wheat, 

guides,    are   the   only   ones   given  (U.  S).  580. 


452  THE    LAND    CONVEYED. 

If  the  starting-point  of  the  boundaiy  line  cannot  be  identi- 
fied from  the  description  given  in  the  deed  the  conveyance  is 
voidjo 

Where  lands  are  described  as  being  bounded  on  any  side  by 
the  land  of  a  third  person,  the  laud  conveyed  will  be  bounded 
by  the  true  boundary  line  between  it  and  the  land  of  such 
third  person,  and  not  by  the  line  that  was  understood  or  suj)- 
posed  to  exist  when  the  deed  was  given,  if  the  two  lines  are 
not  the  sa.me;'^^  and  a  conveyance  by  a  boundary,  on  a  speci- 
fied course  and  distance,  "more  or  less,"  from  a  given  point 
to  lands  of  a  third  person  named,  will  be  governed  by  the  true 
line  of  such  lauds,  and  not  b}'  the  specified  distanceJ^ 

Where  the  cardinal  i)oiuts  of  the  compass  are  mentioned 
they  must  be  understood  and  construed  in  their  true  technical 
meaning.  Custom  and  usage  in  all  parts  of  the  country  have 
to  a  certain  extent  sanctioned  the  employment  of  the  terms 
''Northerly,"  "Westerly,"  etc.,  in  the  description  of  lines  and 
courses.  For  this  practice,  however,  there  is  no  precedent  in 
law  and  where  such  terms  are  used  they  must  be  construed 
to  mean  due  North  or  West,  as  the  case  may  be.'''^  So,  too, 
where  the  words  "North-easterh',"  or  similar  expressions  are 
employed,  such  words  must  be  construed  with  reference  to 
the  true  meridian  and  held  to  mean  North-east,  etc.  Where 
a  course  is  desired  which  deflects  from  any  of  the  cardinal 
points  its  inclination  should  be  ascertained  and  properly  ex- 
pressed, as,  "North,  ten  degrees  East,"  if  the  course  is  in- 
tended to  be  relied  on  as  a  guide  for  fixing  the  boundaries  of 
the  tract.  The  mention  of  cardinal  points  may,  however,  be 
controlled  or  qualified  by  other  words  of  description  used  in 
connection  with  them  and  such  will  generally  be  the  case 
when  it  is  necessary  to  harmonize  a  line  run  on  such  course 
with  the  points  given  for  the  beginning  and  ending  of  such 
line.'^^ 

§  378.  Marked  lines.  Courts  have  ever  been  inclined  to  re- 
gard with  favor  the  lines  actually  run  in  all  cases  of  surveys, 

70  Le  Franc  v.  Richmond,  5  Saw-  ••'^  Brandt  v.  Ogden,  1  Johns.  (N. 

yer    (C.   Ct.)    601.  Y.)    156;     Fratt   v.  Woodward,   32 

-1  Umbarger  v.  Chaboya,  49  Cal.  Cal.    220. 

256.  T4  Currier  v.  Nelson,  96  Cal.  505. 

T2  Howell    v.    Merrill,    30    Mich. 
283. 


THE    L.\ND    CONVEYED.  -ioJ 

and  ((>  pcniiit  .such  lines,  when  ascci'taincd,  to  control  other 
descriptions  J"'"'  So,  wlicrc  il  (  an  be  proved  that  a  line  was  act- 
ually run  and  marked  and  a  cc^rncr  made,  such  line  will  be 
taken  as  the  true  one,  allliou<;h  the  deed  calls  for  a  natural 
object  not  reached  by  such  line."" 

I?ul  while  marked  lines  are  usually  ])ermitted  to  control  less 
delinite  means  of  location,  it  is  only  when  the  line  can  be 
identified  on  the  ••round  as  the  one  made  by  the  surveyor  that 
it  will  control  a  call  for  course  and  distance.'^'^ 

v;  379.  Boundary  by  "parallel  lines."  No  ti-rni  is  more 
commonly  employed  in  the  calls  of  a  deed  than  that  which 
describes  a  course  as  running  "parallel"  to  some  other  line 
used  as  a  boundary.  Parallel  lines,  by  strict  mathematical 
definitions,  are  usually  to  be  regarded  as  straight  lines,  and  in 
the  employment  of  such  terms  in  deeds  and  other  instruments 
straight  lines  are  usually  contemplated.  I»ut  in  common 
speech  about  boundaiies,  or  in  a  geographical  sense,  the 
words  are  often  used  to  represent  lines  which  are  not  straight. 
The  term  is  used  for  want  of  a  better,  and  not  because  it  in 
all  respects  fits  the  use  to  which  it  is  applied.  It  is  used  in 
many  instances  to  avoid  excessive  verbiage;  and  while  such 
use  may  not  be  technically  exact  it  is  not  obscure,  and  usually 
there  is  no  difficulty  in  understanding  what  is  m(  ant.''^^ 

If  a  boundary  line  is  described  in  a  deed  as  being  parallel 
with  the  general  course  of  a  stream  whicli  does  not  run 
straight,  but  meanders,  a  line  is  meant  which  runs  parallel 
with  the  stream  in  all  its  meanderings;  and  notwithstanding 
that  a  call  for  direction  is  given  as  ''running  easterly  parallel 

"■''  Where   a   deed    described    the  not  conform  to  the  course  and  dis- 

line  in  dispute  as  running  from  a  tance  given  in  the  deed;    and  that 

corner  on  a  given  course  a  given  the   fact  of  the   existence  of  said 

number  of   rods  to  a  corner,  but  line  of  marked  trees  was  legitimate 

did  not  state  whether  the  corners  as  tending  to  show  the  marked  cor- 

were  marked  on  the  land  or  not,  ners   as   called    for   by     the   deed, 

and  it  appeared  by  parol  that  they  Clary  v.  McGlynn,  46  Vt.  347. 
were  in  fact  marKed  by  means  of        ~''>  Baxter    v.    Wilson',    95    N.    C. 

monuments,  and  that  there  was  a  137. 

straight  line  of  marked  trees  from       "7  Fagan  v.  Stoner,  67  Tex.  286. 
one  corner  to  the  other,  Jield,  that       ^s  See  Fratt  v.  Woodward,  32  Cal. 

the    authentic    line    would    be    a  219;    Williams  v.  Jackson,  5  Johns, 

straight  line   from   one   corner   to  (N.  Y.)   306;    Winthrop  v.  Curtis, 

the  other,   notwithstanding   it  did  3  Me.  103. 


454  THE    LAND    CONVEYED. 

with,"  etc.,  the  case  will  not  be  changed,  for  while  such  words 
as  "easterly,"  when  used  alone  in  calls  from  one  monument  to 
another,  would  presume  a  straight  line,  yet  the  law  will  not 
so  declare  where,  as  in  the  case  of  a  sinuous  water-course,  the 
language  of  the  deed  shows  that  a  different  line  was  in- 
tended.'^ 

S  380.  Estoppel  in  pais.  Questions  arising  out  of  disputed 
boundary  lines  are  frequently  settled  by  estoppels  in  pais 
growing  out  of  the  acts  or  declarations  of  the  party  who  after- 
wards asserts  rights  in  respect  to  such  boundaries.  Thus, 
where  one  is  negotiating  for  the  purchase  of  a  piece  of  land 
adjoining  the  lands  of  another,  and  the  latter  points  out  to 
him  a  line  which  he  says  is  the  division  line  between  the  two 
pieces,  he  will  be  estopped  b^'  such  statements  from  showing 
the  line  to  be  further  over  on  the  same  tract,  where  the  party 
making  the  purchase  relies  or  acts  upon  these  representa- 
tions.^*^ It  is  essential,  however,  to  the  creation  of  an  estoppel 
of  this  character,  that  the  party  to  whom  the  representations 
are  made  should  rely  and  act  upon  them;  he  must  have  been 
induced  to  believe  in  the  existence  of  a  certain  state  of  facts, 
and  to  act  upon  that  belief  so  as  to  alter  his  condition.^!  In 
this  all  the  authorities  agree;  and  hence,  if  subsequent  cir- 
cumstances tend  to  disprove  any  such  belief,  or  to  show  that 
it  was  not  relied  upon,  the  party  making  the  representations 
will  not  be  estopped,  and  may  set  up  a  claim  inconsistent  with 
his  former  statements.^^ 

§  381.  Statements  of  quantity.  Where  the  quantity  of  a 
tract  of  land  is  stated  in  the  deed  as  well  as  the  metes  and 
bounds,  the  latter,  if  they  can  be  ascertained  with  certainty, 
will  control  the  location,  although  they  contain  less  than  the 
given  quantity — the  designation  of  quantity  never  being  per- 
mitted to  control  the  boundaries  where  they  are  clearly  Indi- 


'0  Fratt    V.    Woodward,    32    Cal.  S2  As  where  the  purchaser  after- 

319;     Hicks    v.    Coleman,    25    Cal.  wards  enters  into  agreements  with 

143.  such     coterminous     proprietor     to 

80  Spiller  v.  Scribner,  36  Vt.  247.  have   a   line    run   with   a   view   to 

81  Martin   v.   Zellerbach,    38   Cal.  establishing  where  it  ought  to  be. 
300;   McCabe  v.  Raney,  32  Ind.  309;  Russell  v.  Maloney,  39  Vt.  579. 
Horn  V.  Cole,  51  N.  H.  287. 


THE    LAND    CONVEYED.  ioo 

catod.^'^     liiit  where  tliei-c  is  doubt  aw  to  the  true  description, 
such  designation  of  (juautitv  nuiy  be  pioperly  coiisidered.*^^ 

As  a  rule,  however,  a  recital  in  a  conveyance  of  land  that 
the  tract  contains  a  certain  number  of  acres  will  always,  un- 
less there  is  an  express  covenant  as  to  (piantity,  be  regarded 
as  part  of  the  description  merely,  and  will  be  rejected  if  in- 
consistent with  the  actual  area  as  ascertained  by  known 
monuments  and  boundaries.  Such  recital  aids  but  does  not 
control  the  description  of  the  granted  premises.**''^  The  word 
"about,"  so  frecjuently  employed  in  connection  with  state- 
ments of  (piantity,  is  generally  i-egarded  as  a  word  of  approxi- 
mation only;  it  will  not  cover  any  material  deficiencies. 

§  382.  Streets  and  highways.  The  general  rule  is  now  well 
settled  that  a  grant  of  land  bounded  by  a  street  or  highway, 
whether  the  same  be  public  or  private,  carries  the  land  to  the 
middle  of  such  way;  and  such  is  the  established  presumption, 
governing  the  construction  of  a  contract  or  deed,  in  the  ab- 
sence of  controlling  words.*^*"'  This  presumption  has  in  a  num- 
ber of  instances  been  held  to  be  so  strong  that  it  is  not  re- 
butted even  where  the  calls  of  the  deed  describe  a  line  as 
running  from  a  fixed  point  a  ceriain  distance  to  the  highway 
and  thence  along  the  same,  and  the  distance,  upon  measure- 
ment, carries  the  line  only  to  the  side  of  the  highway;'*'^  for 
by  the  well-known  rules  of  construction,  calling  for  localities, 
measurements  must  yield  to  monuments.  Where  lands  are  de- 
scribed as  bounded  on  lands  of  another  or  upon  roads,  ways, 

«■■!  Ayers  v.  Watson,  113  U.  S.  594;  N.  Y.  251;    Bissell  v.  R.  R.  Co.,  23 

Fuller   V.   Carr,   33   N.   J.   L.   157;  N.  Y.  64;    Taylor  v.  A'rmstrong,  24 

Campbell  v.  Johnson,  44  Mo.  247.  Ark.   107;     Marsh  v.   Burt,  34   Vt. 

»<  Field   V.   Columbet,   4    Sawyer  289;     Kimball   v.   Kenosha  4   Wis. 

(C.  Ct.)  523.  331;     Warbritton  v.  Demorett.  129 

8s  Fuller  V.  Carr,  33  N.  J.  L.  157;  Ind.  346;    Florida,  etc.  R.  R.  Co.  v. 

Campbell  v.  Johnson,  44  Mo.  247;  Brown,    23    Fla.    104;      Salter    v. 

Clark  V.  Scammon,  62  Me.  47.  Jonas,  39  N.  J.  L.  469. 

!<«  Newhall    v.    Ireson,    8    Cush.        ^' Paul  v.  Carver,  26  Pa.  St.  225; 

(Mass.)    595;     Motley   v.   Sargent,  Motley  v.  Sargent,  110  Mass.  235; 

119  Mass.  235;    Champlain  v.  Pen-  Oxton  v.  Groves,  68  Me.  371;   Gould 

dleton,  13  Conn.  23;     Buckman  v.  v.  Eastern  R.  R.  Co.  142  Mass.  85; 

Buckman,  12  Me.  463;    Low  v.  Tib-  Matter   of   Robbins,    34   Minn.   99; 

betts,  72  Me.  92;    Moody  v.  Palmer,  Livingston  v.  Mayor,  S  Wend.  tN. 

50  Cal.  37;    Paul  v.  Carver,  26  Pa.  Y.)   85;    But  see.  contra.  Sibley  v. 

St.  225;    Dunham  v.  Williams.  37  Holden,  10  Pick.   (Mass.)    249. 


456 


THE    LAND    CONVEYED. 


waters,  etc.,  such  abuttals  are  monuments;**^  and  where  there 
is  a  conflict  between  courses  and  distances  on  the  one  hand 
and  monuments  on  the  other,  the  description  by  monuments 
must  control. 

Nor  does  it  seem  essential,  in  order  to  carry  a  grant  to  the 
center  of  a  highway,  that  the  laud  should  even  be  described 
as  abutting  or  bounding  thereon;  and  whenever  land  is  sold 
bordering  on  a  highway,  the  mere  fact  that  it  is  not  so  de- 
scribed in  the  deed  will  not  vary  the  construction.  The 
grantee  will  still  take  the  fee  to  the  middle  of  the  highway, 
on  the  line  of  which  the  land  is  situated.^^ 

It  has  been  stated,  as  a  reason  for  the  rule,  that  the  adjoin- 
ing proprietors  are  presumed  to  have  originally  furnished  the 
land  in  equal  proportions  for  the  sole  purpose  of  a  highway  ;°^ 
and  hence  in  a  grant  of  the  adjacent  land  the  soil  to  the  cen- 
ter of  the  highway  passes  as  a  parcel  of  the  land  and  not  as 
an  appurtenant.''^  Ordinarily  the  ownership  of  the  soil  of  the 
street  or  road  is  of  no  practical  use  to  the  grantors  of  the  ad- 
jacent property;  and  usually  there  is  no  purpose  to  be  served 
in  the  retention  by  them  of  narrow  strips  or  gores  of  land  be- 
tween the  land  conveyed  and  that  of  other  proprietors,  while 
for  many  purposes  such  ownership  is  of  special  importance  to 
the  purchaser.'-'^    n  [^  presumed,  therefore,  that  the  grantor's 


88  Wilder  v.  Davenport,  58  Vt. 
642;  Davis  v.  Rainsford,  17  Mass. 
207;  Boston  v.  Richardson,  13  Al- 
len  (Mass.)   152. 

89  Gear  v.  Barnum,  37  Conn.  229; 
Stark  v.  Coffin,  105  Mass.  328; 
Hawesville  v.  Lander,  8  Bush 
(Ky.)   679. 

90  Dunham  v.  Williams,  37  N.  Y. 
251.  This  presumption  yields  when 
a  different  intention  is  clearly  man- 
ifested, or  when  the  evidence 
shows  there  could  be  no  founda- 
tion for  it;  as,  where  the  grantor 
at  the  time  owned  no  part  of  the 
street,  the  same  being  laid  out 
wholly  on  the  land  of  another. 
Kings  Co.  Ins.  Co.  v.  Stevens,  87 
N.  Y.  293;  Champlin  v.  Pendleton, 
13  Conn.  27.    Entire  street  in  such 


case  passes  to  abutting  lots  under 
the  general  description  in  deed  to 
original  proprietor.  Taylor  v. 
Armstrong,  24  Ark.  107. 

9iBissell  V.  R.  R.  Co.  23  N.  Y. 
64. 

92  And  so  it  has  been  held  that, 
where  the  owner  of  a  tract  of  land 
laid  out  a  street  on  the  outer  edge 
thereof,  and  then  conveyed  lots 
bounding  on  the  street,  his  gran- 
tees took  the  fee  in  the  whole 
width  of  the  street.  Re  Robbins, 
34  Minn.  99.  On  the  'question 
whether,  under  a  particular  de- 
scription, land  passes  to  the  cen- 
ter of  a  highway  or  to  the  thread 
of  a  stream,  the  trivial  benefit  to 
the  grantor  of  the  fee  in  the  road- 
way or  stream,  and  the  great'  pos- 


THE    LAND    CONVEYED. 


457 


land  in  a  street  passes  iiiuh  r  tin-  ^ciicial  description  in  his 
deed  of  the  adjoiniii^^  land  with  whidi  it  is  connected  or  lo 
which  it  l)('h)nj;s,  as  part  of  tiie  same  tract,  subject,  of  course, 
to  the  public  use.''"' 

§  383.  Continued — Unopened  streets.  Nor  does  the  mere 
fact  that  a  street  may  be  uuopeued  vary  the  rule  as  above 
stated,  for  as  between  grantor  and  grantee  a  street  is  created 
where  land  clearly  defined  as  to  its  extent  and  location  is  de- 
voted to  that  end  by  the  grant,  although  it  is  not  then  in  con- 
dition to  be  used  as  a  street.  In  such  event  it  may  with 
jjropriety  be  referred  to  in  the  dcH'd  as  an  intended  street;  the 
reference  being  to  physical  condition,  not  to  title.  The  pre- 
sumption in  such  case  is  that  the  conveyance  carries  the  fee 
to  the  center  of  such  proposed  street.^^ 


sible  injury  to  the  grantee  from 
the  want  of  it,  are  often  circum- 
stances of  controlling  weight. 
"Ordinarily,"  says  Ladd,  J.,  in 
Woodman  v.  Spencer,  54  N.  H. 
512,  "the  benefit  to  the  grantor  of 
retaining  his  right  in  the  soil  of 
the  road  would  be  so  small  as  to 
be  almost  or  quite  inappreciable. 
Ordinarily,  the  present  actual  in- 
convenience to  the  grantee,  to- 
gether with  the  possible  and  even 
probable  damage  that  may  in  the 
future  result  to  him  upon  a  dis- 
continuance of  the  road,  would  be 
a  matter  of  very  considerable  im- 
portance— enough  to  interfere  seri- 
ously, in  most  cases,  with  the  price 
which  could  be  obtained  for  the 
land.  It  Is  improbable  that  a  man 
will  insist  on  an  exception  the  only 
and  certain  effect  of  which  must 
be  to  materially  diminish  the  sala- 
ble value  of  his  land,  when  he  is 
to  gain  nothing  by  it.  It  is  im- 
probable that  two  men  have  under- 
standingly  entered  into  a  bargain 
which  contains  a  stipulation 
plainly  and  clearly  to  the  disadvan- 
tage of  both.  A  priori  they  would 
not  be  likely  to  do  such  a  thing; 


therefore  a  posteriori  it  is  not 
likely  that  they  would  have  done 
it.  The  language  of  their  deed  is 
to  be  read  in  the  light  of  this  im- 
probability." 

»■'  The  presumption  is  so  strong 
that  even  express  measurements 
have  been  held  not  to  defeat  it. 
Thus,  the  owner  of  land  laid  out 
streets  and  passage-ways,  divided  it 
into  lots,  and  caused  a  plan  thereof 
to  be  made.  He  conveyed  these  lots 
to  different  grantees  by  deeds  bound- 
ing on  the  streets  and  passage-ways, 
and  describing  the  lots  by  meas- 
urements which  excluded  them. 
The  deeds  referred  to  the  plan,  and 
conveyed  a  right,  as  appurtenant  to 
the  lot,  to  use  the  passage-ways  in 
common  with  the  grantor  and  his 
assigns.  Held,  that  each  grantee 
took  the  fee  to  the  center  of  the 
street.  Gould  v.  Eastern  R.  R.  Co. 
142  Mass.  85. 

'■>*  As,  where  the  owner  of  land 
conveyed  a  portion  thereof  by  a 
deed  which  bounded  the  land  con- 
veyed by  a  street  described  as  laid 
out  upon  a  map,  and  provided  that 
it  should  actually  be  laid  out  of 
a  given  width,  in  a  subsequent  pro- 


458  THE    LAND    CONVEYED. 

§  384.  Continued — Exclusion  from  grant.  There  can  be  no 
doubt  that  the  grantor  of  land  abutting  on  a  highway  may 
except  the  same  from  his  grant.  The  general  presumption  in 
every  case  is,  however,  that  he  did  not  intend  to  retain  it;'-*^ 
and  such  exception  will  never  be  adjudged  unless  it  clearly 
appears  from  the  language  employed  that  such  a  course  was 
intended.  What  language  shall  be  sutlicient  to  exhibit  such 
intention  is  the  point  of  difficulty  upon  which  courts  have 
dififered.  The  description  of  the  jiremises  in  connection  with 
other  parts  of  the  grant,  and  by  reference  to  the  situation  of 
the  lands  and  the  condition  and  relation  of  the  parties  to  the 
lands  conveyed  and  to  other  lands  in  the  vicinity,  may  further 
be  resorted  to  as  an  aid  in  arriving  at  a  solution  of  the  ques- 
tion; and  these  will  often  have  a  very  important  bearing 
upon  the  points  involved.^^  Taken  in  connection  with  sur- 
rounding circumstances,  streets  will  sometimes  be  excluded 
from  ithe  operation  of  the  grant  even  without  express  words 
of  exception  or  reservation — the  language,  in  the  light  of  the 
facts,  being  construed  so  as  to  demonstrate  an  intention  that 
they  should  not  fjass.^^ 

Another  phase  of  the  subject  is  presented  where  the  con- 
tention of  the  full  extent  of  the  grant  is  raised  by  the  vendor 
and  not  by  the  purchaser.  The  application  of  the  rule  in  such 
case  may  be  productive  of  results  which  were  not  actually 
contemplated    when   the   agreement    was    entered    into,   but 

ceeding  by  his  vendee  to  compel  v.  Dougherty,  33  Me.  502;  Paul  v. 
a  purchaser  to  take  title  under  a  Carver,  26  Pa.  St.  223. 
contract  to  convey  to  him  to  the  96  This  is  particularly  true  in  the 
center  of  the  road  it  was  held  that  case  of  private  ways, 
such  deed  gave  title  to  the  center,  '■>'  The  New  York  cases  favor  the 
and  that  the  vendor  (the  original  construction  that  where  the  de- 
vendee)  had  title  thereto  and  that  scription  commences  or  carries  the 
the  contract  should  be  specifically  land  to  the  side  of  the  road,  with 
enforced  against  his  vendee.  Mat-  specified  courses  and  distances,  the 
ter  of  Ladue,  118  N.  Y.  213.  soil   of  the  street  is  by  necessary 


05  Bissel  V.  R.  R.  Co.  23  N.  Y.  64 
Kimball  v.  Kenosha,  4  Wis.  331 
Chatham  v.  Brainerd,  11  Conn.  60 


implication  excluded;  that  the 
points  thus  established  are  con- 
trolling monuments,  and   that  all 


and    see    3    Kent's    Com.    433;     2  lines  must  conform  to  the  points 

Wash.  Real  Prop.  635;    Matter  of  thus   designated.     See   Jackson   v. 

Ladue,   118   N.    Y.    213;     Silvey  v.  Hathaway,  15  Johns.  447;    English 

McCool,    86    Ga.    1;     Thomsen    v.  v.  Brennan,  60  N.  Y.  609.   The  same 

McCormick,  136   111.   135;     Palmer  construction  has  been  had  in  Mas- 


THE    L.\ND    CONVEYED.  459 

which,  nevertheless,  k'^iliiiiaU'lv  How  Iruiii  it.  Tlius,  when 
an  agreement  for  the  puicliase  of  land  at  u  certain  price  per 
acre,  after  survey  made,  calls  for  a  street  or  highway  as  one 
of  the  boundaries,  the  purchaser  must  pay  for  the  land  to  the 
middle  line  of  such  street  or  highway,  unless  a  contrary  inten- 
tion plainly  appears.  It  is  presumed  that  in  fixing  a  price  per 
acre  of  land  abutting  upon  a  street,  all  matters  which  increased 
or  diminished  its  value  were  considered  and  allowed  their 
proper  influence.  Sales  of  this  kind  are  not  unusual,  and  in 
such  cases  the  acreage  must  be  ascertained  by  a  survey  in 
accordance  with  the  boundaries  called  for,  while  the  fair  and 
just  conclusion  is  that,  in  arriving  at  the  price  per  acre,  the 
public  easement  and  other  matters  affecting  the  value  of  the 
property  received  such  consideration  as  they  were  entitled 

tO.«8 

§  385.  Continued — Where  grantor  is  without  title.  While 
the  rule  is  well  settled  that  general  terms  of  description  in 
a  deed,  like  ''to,"  "upon"  or  "along  the  highway,"  raises  a 
presumption  that  the  parties  intended  the  conveyance  to  be 
to  the  middle  or  center  line,  and  that  such,  operation  will  be 
permitt(»d  for  the  deed  notwithstanding  that  the  portion  of  the 
land  embraced  in  the  limits  of  the  road  is  not  covered  by  the 
description  in  express  terms,  it  must  nevertheless  be  remem- 
bered that  the  rule  is  one  of  construction  only,  and  is  limited 
to  those  cases  where  the  grantor  owns  the  fee  of  the  highway. 
The  grantor  owning  the  fee,  the  law  presumes  he  intended  to 
convey  it  and  not  retain  a  narrow  and  ofttimes  long  strip  of 
land,  which,  for  all  practical  purposes,  would  be  of  no  value 
to  him.  But  where  the  grantor  does  not  own  the  fee  of  the 
land  the  law  will  not  presume  that  he  intended  to  convey  that 
which  he  did  not  own;  and  a  deed  bounded  on  a  highway 
would,  in  such  case,  be  satisfied  by  title  extending  to  the 
side  of  the  road.  The  grantee  would  have  all  the  land 
described  in  the  deed,  and  the  grantor  would  not  be  liable  for 
a  breach  of  his  covenants.^ 

sachusetts.     See  Sibley  v.  Holden,  as  it  is  opened  and  built  upon  will 

10   Pick.    249;     Smith   v.    Slocomb,  be  held  to  be  the  line  intended.   De 

9    Gray    36;      and     see    Cottle    v.  Veny  v.  Gallagher,  20  N.  J.  Eq.  33. 

Young,  59  Me.  105.     Where  a  deed  "-^  See,  Firmstone  v.  Spaeter,  150 

calls  for  the  line  of  a  street  as  the  Pa.  St.  616. 

monument,  the  line  of  the  street  »  Dunham  v.  Williams,  37  N.  Y. 


460  THE    LAND    CONVEYED. 

j5  386.  Effect  of  grant  bounded  on  highway.  Wlioro  land 
is  ^rauted  bounded  upon  a  street  or  lu<^hvvay,  such  form  of 
expression  in  the  deed  is  not  merely  a  description,  but  an 
implied  covenant  that  there  is  such  a  street  j^  and  such 
descriptive  words,  particularly  if  the  deed  refers  to  a  plat, 
are  not  to  be  understood  as  merely  signifying  that  the  street 
in  question  is  co-extensive  with  the  lot  conveyed,  but  that  its 
extent,  direction  and  termini  are  to  be  such  as  are  delineated 
on  the  plat  or  otherwise  indicated  by  the  deed.^  But  this  is 
practically  the  full  effect  of  such  a  description.  The  recital 
of  a  street  as  a  boundary  cannot  be  understood  to  be  an  assur- 
ance or  implied  covenant  that  it  has  been  constructed  and  put 
into  condition  for  present  use  as  a  passage-way;*  nor  will  it 
imi)0se  upon  the  grantor  any  obligation  to  grade  and  construct 
it  at  his  own  expense.  The  most  that  can  be  said  is  tliat  it 
amounts  to  an  appropriation  or  setting  apart  of  a  portion  of 
the  adjacent  land  to  that  use.^ 

§  387.  Exception  of  highway.  Ordinarily  a  grant  of  land 
bounding  upon  a  highway  carries  the  estate  of  the  vendee  to 
the  center  line  thereof,  and  that  he  should  so  take  is  usually 
the  intention  of  the  parties.  Where  highways  and  roads  are 
excepted,  as  is  frequently  the  case,  the  deed  is  always 
construed  strongly  against  the  grantor;^  and  unless  it  is 
unmistakably  apparent  by  the  express  terms  of  the  exception, 
or  the  language  employed  in  describing  the  grant,  that  the 
soil  of  the  road-bed  was  intended,  such  exception  will  be  held 
to  apply  only  to  the  easement  of  the  public  incident  to  the 
uses  of  a  public  way,  while  the  grant  will  be  held  to  convey 
the  locus  to  the  center  of  the  road.'^  This  is  particularly  true 
where  the  exception  describes  the  road  as  "laid  out  over  said 


251;    Church  v.  Stiles,  10  Atl.  Rep.  s  Hennessey    v.    R.    R.    Co.    101 

674   (Vt.).  Mass.  540. 

2  Parker  v.  Smith,  17  Mass.  413;  c  Worthington  v.  Hylyer,  4  Mass. 
White  V.  Smith,  37  MicE".  291;  196;  Wyman  v.  Farrar,  35  Me.  64. 
Transue  v.  Sell,  105  Pa.  St.  604.  7  Kuhn    v.    Farnsworth,    69    Me. 

3  Thomas  v.  Poole,  7  Gray  404;  Moulton  v.  Trafton,  64  Me. 
(Mass.)  83.  Compare  Walker  v.  218;  Richardson  v.  Palmer,  38  N. 
Worcester,  6  Gray  (Mass.)   548.  H.    212;      Jamaica    Pond,    etc.    v. 

4  Loring  V.  Otis,  7  Gray  (Mass.)  Chandler,  9  Allen  159;  Elliot  v. 
563.  Small,  35  Minn.  396. 


THE    LAND    CONVEYED.  461 

laud;"    for  tlii     clearly    iiKlitalcs   ilial    it    is  the  easemcul  of 
I)ublic  user,  ami  uot  the  land  itself,  that  is  in  fact  excepted.^ 

§  388.  Streams  and  water-ways.  The  same  principle  which 
in  a  <;raut  of  laud  boiindi'd  iijion  a  highway  carries  the  fee  to 
the  center  line  thereof  api)lies  with  equal  force  to  fresh-water 
streams;  and  when  such  stream  is  designated  as  the  boundary 
the  jieneral  principle  is  that  there  must  be  a  res<'rvation  or 
restriction,  expressed  or  necessarily  imi)lied,  wliich  controls 
the  operation  of  the  j^^eueral  presumption  and  makes  the  par- 
ticular iijrant  an  exception,  or  else  the  deed  jiasses  the  fee  to 
its  center.-'  In  such  cases  the  j^eneral  rule  is  that  the  grantee 
takes  to  the  thread  of  the  ativum— usque  ad  filum  aqiuie; 
and  this  is  usually  regarded  as  the  middle  line  between  the 
shores,  irrespective  of  the  depth  of  the  channel,  taking  it  in 
the  natural  and  ordinary  stage  of  water.^*^ 

An  imi)ortant  distinction  is  to  be  observed,  however,  when 
the  channel,  and  not  the  river,  forms  the  designated  boundary. 
The  channel  is  regarded  as  the  deepest  part  of  the  river — ^the 
navigable  part — and  is  something  entirely  distinct  aud  differ- 
ent from  the  thread.  The  thread  has  been  construed  to  mean 
the  center,  whereas  the  channel  may  be  on  one  side  or  the 
other;  and  when  the  grant  bounds  the  land  by  the  channel, 
the  thread  of  the  channel,  and  not  the  river,  constitutes  the 
boundary.^  1 

The  foregoing  remarks  apply  without  exception  to  all 
streams  unnavigable  in  fact,  and  generally  to  water-courses 

8  Wellman  v.  Dickey,  78  Me.  29.  the  portion  of  the  stream  adjoining 

0  Rice    V.    Monroe,    36    Me.    309;  the  grantee's  land  is  necessary  for 

Luce  V.  Carley,  24  Wend.   (N.  Y.)  the   enjoyment   of   the   same,   and 

451;    State  v.  Canterbury,  28  N.  H.  as  such  portion  of  the  stream  is 

195;     Cox  V.  Friedley,   22  Pa.   St.  of  no  value  to  the  grantor,  it  must 

124;    Child  v.  Starr,  4  Hill  (N.  Y.)  be  presumed  by  granting  the  land 

369;    Seaman  v.  Smith,  24  HI.  521;  to  grant  also   the   portion   of   the 

Braxon    v.    Bressler,    64    HI.    488;  stream  adjoining  said  land;     and 

Lunt    v.    Holland,    14    Mass.    149;  the   law   can   fix  no   line   between 

Bradford    v.    Cressey,    45    Me.    9;  opposite  owners  except  the  middle 

Boom   Co.  V.    Smith,   84   Ky.   375;  of   the    stream.      Carter   v.    R.    R. 

Norcross  v.  Griffiths,  65  W|s.  610;  Co.  26  W.  Va.  644;    and  see  Houck 

Watson  V.  Peters,  26  Mich.  508.  v.  Yates,  82  HI.  179;    Cobb  v.  La- 

10  Warren  v.  Thomaston,  75  Me.  valle,  89  HI.  331. 
329.      The   theory    on    which    this        n  Warren  v.  Thomaston,  75  Me. 

law  is  based  seems  to  be  that,  as  329. 


462  THE    LAND    CONVEYED. 

of  every  description;  but  in  a  very  few  states  the  statute  has 
in  some  measure  changed  the  common  law,  and  created  a  rule 
that  is  at  variance  with  the  generally-received  doctrine  in  this 
country.  In  those  states^-  the  general  principles  above  stated 
have  been  declared  inapplicable  to  the  great  inland  water 
ways  which  are  used  as  arteries  of  commerce  and  upon  which  a 
free  navigation  is  permitted,  and  grants  of  land  bounded  on 
them  extend  only  to  the  water's  edge.i^  In  the  federal  courts 
it  has  been  also  held  that  proprietors  of  lands  bordering  upon 
navigable  rivers  under  title  derived  from  the  United  States 
hold  only  to  the  stream,  as  by  express  provisions  of  the 
national  statutes  such  rivers  shall  be  deemed  to  be  and  remain 
public  highways.^* 

§  389.  Continued — Construction  of  descriptive  terms.  In 
the  construction  of  grants  of  the  character  now  under  consid- 
eration, the  words  ''to,''  ''on,"  "by,"  "along,"  "down"  and 
other  words  of  like  import  have  always  been  held  to  carry 
title  to  the  thread  or  center  of  the  stream.^^  On  the  other 
hand,  such  words  as  to,  on  or  along  "the  bank"  have  been 
held  to  indicate  a  restiiction,  and  to  exclude  the  idea  of 
extending  the  grant  further  than  the  water's  edge.^^ 

Where  lands  are  conveyed  bounding  upon  a  water-course 
or  other  varying  limit,  and  reference  is  also  made  to  a  plan, 
the  date  of  the  conveyance,  and  not  the  date  of  the  plan,  is  to 
be  considered  in  determining  the  question  of  the  true  bound- 
ary of  the  land  upon  the  water  limit.^'^ 

12  The  states  in  which  a  positive  Wend.  (N.  Y.)  451;  Phinney  v. 
statute   has    changed   the   common    Watts,  9  Gray  (Mass.)  269. 

law    are    Alabama,    Iowa,     North  ig  Bradford  v.  Cressey,  45  Me.  9; 

Carolina,    Pennsylvania   and    Ten-  Child  v.  Starr,  4  Hill  (N.  Y.)  369; 

nessee.  Rockwell    v.    Baldwin,    53    HI.    19. 

13  See  Brown  Oil  Co.  v.  Cald-  i^  Jones  v.  Johnston,  18  How. 
well,  35  W.  Va.  95.  (U.  S.)   150.     The  right  which  the 

1*  See  R.  R.  Co.  v.  Schurmeir,  7  owner  of  a  water  lot  has  to  the 

Wall.     (U.    S.)    272;      Forsyth    v.  accretions  in   front  of  it  depends 

Small,  7  Biss.   (C.  Ct.)  201;    State  on  its  condition  at  the  date  of  the 

v.  Milk,  11  Fed.  Rep.  389.  deed  which  conveyed  him  the  legal 

15  Pike  V.   Munroe,  36   Me.  309;  title,   and  cannot  be  carried  back 

Warner    v.    Southworth,    6    Conn,  by  relation  to  the  date  of  the  title 

470;   Magnolia  v.  Marshall,  39  Miss,  bond  under  which  he  procured  his 

109;    Thomas  v.  Hatch,  3  Sumner  deed.     Id. 
(C.  Ct.)    170;     Luce  v.  Carley,  24 


THE    LAND    CONVEYED.  463 

A  grant  bounded  by  the  "shore"  of  a  stream  or  river  does 
not  receive  the  same  construction  as  a  similar  grant  where 
the  land  in  (juestion  abuts  upon  the  sea  or  any  of  its  arms  or 
estuaries;  for  upon  an  inland  river  there  is  no  shore  in  the 
legal  sense  of  that  tenn — that  is,  a  margin  between  high  and 
low  tide.^^  The  banks  of  a  river  belong  to  the  ripanan  owner, 
and  he  possesses  the  absolute  fee  down  to  low-water  mark. 

It  may  be  said,  however,  that  the  word  "shore"  has  been 
productive  of  more  diversity  of  opinion,  with  respect  to  its 
effect  and  interpretation,  than  any  of  the  other  tenns  above 
mentioned.  A  number  of  the  authorities  regard  it,  when 
emi)loyed  to  indicate  a  boundary,  as  conveying  the  entire 
riparian  interest  and,  hence,  the  boundary  of  a  tract  so 
described  is  held  to  be  the  thread  of  the  stream.^^  But  in 
some  cases  the  tenn  has  been  construed  to  mean  only  the  point 
of  contact  of  the  bank  with  the  water — the  low  water  mark,-" 
while  in  one  case  it  has  been  given  a  still  more  restricted 
meaning  which  virtually  excludes  the  whole  shore  from  the 
land  conveyed.21  If  we  shall  adopt  in  this  connection  the 
generally  received  rules  relating  to  grants  of  land  abutting 
or  bounding  on  highways,  and  the  analogy  between  the  two 
descriptions  is  very  strong,  then  the  first  mentioned  view 
must  be  taken  as  correct  and  tlie  latter  as  wrong.  Yet  as 
this  is  a  matter  wholly  within  state  control,  and  as  the  policy 
of  the  states  with  respect  to  riparian  rights  is  not  uniform, 
we  must  continue  to  expect  contrary  decisions. 

But  while  the  proprietor  of  land  situated  upon  a  non-navi- 
gable stream  or  river  is  presumed  to  own  to  the  center  or 
thread  thereof,  and  a  conveyance  by  him  bounding  upon  such 
stream  is  presumed  to  carry  the  grant  to  such  center,  it  must 
be  remembered  that  the  pnncii)le  is  only  a  ])resumption,  for 
one  man  may  own  the  bed  of  such  a  stream  and  another  may 
own  the  banks;  and  where  in  a  deed  conveying  land  the 
boundary  is  limited  to  the  "bank"  of  the  stream  iustcad  of 
bounding  it  "on"  or  "along"  the  stream,  the  i)resumption,  it 


isBainbridge  v.  Sherlock,  29  Ind.  bers,  3  Ohio  495;    Handly's  Lessee 

364.  V.  Anthony.  5  Wheat.  (U.  S.)  384. 

19  Sleeper  v.   Laconia,   60   N.   H.  -'"  Stevens  v.  King,  76  Me.  197. 

201;    Starr  V.  Child,  20  Wend.   (N.  -i  Storer    v.    Freeman,    6    Mass. 

Y.)  149;    Gavit's  Admrs.  v.  Cham-  435. 


464  THE    LAND    CONVEYED. 

has  been  held,  must  fail.--  Such  a  description,  it  is  held, 
necessarily  excludes  the  stream  itself,  upon  the  familiar  prin- 
ciple that  every  express  grant  fixes  its  own  limits  and  deter- 
mines the  rights  of  the  parties;  and  as  an  owner  may  sell  his 
land  without  the  privilege  of  the  stream,  he  will  be  presumed 
to  do  so  if  he  bounds  his  grant  by  the  bank.^^ 

There  is  also  a  marked  exception  in  respect  to  the  rules  of 
construction  relating  to  lines  and  courses,  as  usually  applied, 
when  the  grant  bounds  on  a  water-way.  Ordinarily  where  a 
course  is  indicated  from  one  fixed  point  to  another  a  straight 
line  is  intended,  but  in  riparian  grants  where  a  certain  dis- 
tance is  called  for  from  a  given  point  to  another  given  point 
on  the  stream,  to  be  ascertained  by  measurement,  such 
measurement  must  be  taken  by  the  meanders  of  the  stream 
and  not  in  a  straight  line.^^ 

§  390.  Lakes  and  ponds.  The  principles  which  have  been 
discussed  in  the  preceding  section  must  be  understood  as 
applying  only  to  rivers,  streams  and  ponds  of  circumscribed 
area.  They  do  not  apply  to  grants  bounding  on  the  great 
inland  lakes  or  other  large  bodies  of  standing  fresh  water. 
The  word  "stream"  has  a  well-defined  meaning,  wholly  incon- 
sistent with  a  body  of  water  at  rest;  it  implies  motion — a 
flowing  current — and  contemplates  a  comparatively  narrow 
channel  into  which  the  liues  of  riparian  owners  can  be 
extended  at  right  angles  without  interference  or  confusion, 
and  without  serious  injustice  to  any  one.  It  is  but  natural, 
therefore,  when  such  streams  are  called  for  as  boundaries,  to 
hold  that  the  real  line  between  opposite  shore-owners  should 
be  the  center  or  thread.  But  when  this  rule  is  attempted  to 
be  applied  to  lakes  and  ponds,  numerous  practical  difficulties 
are  encountered.  They  have  no  current,  and,  being  more  or 
less  circular,  it  is  hardly  possible  to  run  the  boundary  lines 
beyond  the  water's  edge  so  as  to  define  the  rights  of  shore- 
owners  in  the  beds.  There  may  be  instances  where,  from  the 
contracted  area  or  peculiar  character  of  the  configuration  of 
a  pond,  a  grant  will  be  presumed  to  include  it;-^  indeed,  this 

22  Rockwell  V.  Baldwin,  53  111.  19.    85;    McCuUoch  v.  Aten,  2  Ohio  425. 

23  Hatch  V.  Dwigh't,  17  Mass.  298;  24  Brown  Oil  Co.  v.  Caldwell,  35 
Child  V.  Starr,  4  Hill  (N.  Y.)  369;    W.  Va.  95. 

Bradford  v.  Cressey,  45  Me.  9;  and  25  Ledyard  v.  Ten  Eyck,  36  Barb, 
see  Daniels  v.  R.  R.  Co.  20  N.  H.    (N.  Y.)  102.     In  this  case  a  grant 


THE    LAND    CONVEYED. 


46; 


in  the  established  doctrine  in  some  states,-''  and  the  rules 
relating  to  grants  upon  streams  are  held  to  apply i^^"  but 
ordinaiily.  where  a  grant  is  bounded  on  a  natural  lake  or 
])ond,  the  title  extends  only  to  low-water  mark,  or  to  that  line 
where  the  water  usually  stands  wlnn  unaffected  by  any 
disturbing  cause.^^  The  riparian  rights  of  the  adjoining  pro- 
prietor are  all  preserved  intact,  and  any  privilege  which  he 
possesses  distinct  from  the  rest  of  the  public  may  be  retained 
by  him  or  conveyed  to  others;  but  his  ownership  in  the 
abutting  land  terminates  at  the  water's  edge.^s 

The  distinction  between  a  stream  and  a  jjond  or  lake  seems 
to  be,  as  above  indicated,  that  in  the  one  case  the  water  has  a 
natural  motion  or  current,  while  in  the  other  the  water  is.  in 
its  natural  state,  substantially  at  rest.  And  this  is  so  inde- 
pendent of  the  size  of  the  one  or  the  other.  The  fact  of  some 
current  in  a  body  of  water  is  not,  however,  of  itself  sufficient 
in  every  instance  to  make  it  a  stream;  nor  will  the  swelling 
out  of  a  stream  into  a  broad  sheet  necessarily  make  it  a  lake.2» 

While  the  foregoing  expresses  the  general  doctrine  of  the 
volume  of  authority  upon  the  subject  there  are  yet  many  cases 
holding  to  the  contrary  and  which  refuse  to  make  anv  dis- 


bordering  on  a  pond  five  miles 
long  and  three-fourths  of  a  mile 
wide,  with  no  current  and  no  main 
channel,  and  not  generally  naviga- 
ble, was  held  to  carry  title  to  the 
center. 

2«  Particularly  in  New  York  and 
those  states  which  adopt  the  New 
York  rule.  The  Massachusetts  rule 
holds  to  the  contrary  and  this  rule 
seems  to  have  the  largest  adher- 
ence. 

20a  Smith  v.  Rochester.  92  N.  Y. 
463;  Gouverneur  v.  Ice  Co.  134 
N.  Y.  355. 

-"  Lincoln  v.  Davis.  53  Mich.  375; 
Wheeler  v.  Spinola,  54  N.  T.  377; 
(This  case,  involving  special  fea- 
tures, has  been  much  criticised  in 
New  York.)  Robinson  v.  White,  42 
Me.  209;  State  v.  Gilmanton.  9  N. 
H.  461;  Jakeway  v.  Barrett,  33  Vt. 
30 


316;  Seaman  v.  Smith,  24  111.  521; 
Paine  v.  Woods,  108  Mass.  160; 
Mariner  v.  Schulte,  13  Wis.  775; 
Wood  V.  Kelley,  30  Mo.  47;  Ka- 
nouse  V.  Stockbower,  48  N.  J.  Eq. 
42;  Boorman  v,  Sunnuchs,  42  Wis. 
233;  Trustees  v.  Schroll,  120  111. 
509. 

-■''Bradley  v.  Rice,  13  Me.  201; 
Waterman  v.  Johnson,  13  Pick. 
(Mass.)  261;  Wheeler  v.  Spinola, 
54  N.  Y.  377;  Warren  v.  Chambers, 
25  Ark.  120;  Nelson  v.  Butterfield, 
21  Me.  229;  Primm  v.  Walker,  38 
Mo.  99. 

-3  A  body  of  water  five  or  six 
miles  long,  and  In  some  places  a 
mile  in  width,  which  is  fed  by 
springs,  and  has  no  connection 
with  a  river  or  other  stream  ex- 
cept by  a  slough,  which  is  dry  dur- 
ing the  summer,  and  the  body  of 


4(iG  THE    LAND    CONVEYED. 

tinction  betwoen  non-navigable  lakes  and  streams  in  respect 
to  constrnction  and  extent  of  grants  bounding  upon  them.^o 

§  391.  Qontinued — Artificial  waters.  While  the  rule  is 
general  that  land  bounded  uj)on  a  natural  lake  or  pond 
extends  only  to  the  water's  edge,  particularly  when  so 
described,  a  different  rule  seems  to  prevail  in  respect  to  the 
construction  of  grants  bounding  lands  on  a  lake  or  pond 
created  by  artificial  means.  If  the  pond  is  caused  by  dam- 
ming back  the  waters  of  a  natural  stream,  the  grant  extends 
to  the  middle  of  the  stream  in  its  natural  state,-"*^  unless  the 
pond  has  been  so  long  kept  as  to  become  permanent,  and  to 
have  acquired  another  well-defined  boundary ."^^ 

§  392.  High-water  mark.  Where  the  land  conveyed  is 
described  as  extending  to  or  bounded  by  "high  water-mark," 
this  is  considered  an  explicit  boundary — a  fixed  and  perma- 
nent line  as  it  existed  at  the  time  of  the  acceptance  of  the 
deed,  and  does  not  follow  the  after-changes  of  the  water 
line;33  and  it  seems  that  a  grant  of  land  bounded  by  or  along 
a  "beach,"  ordinarily,  and  in  the  absence  of  any  language  in 
other  clauses  of  the  deed,  or  of  anything  in  the  situation  of 
the  lands  granted,  or  other  circumstances  authorizing  a  differ- 
ent interpretation,  conveys  title  only  to  high-water  mark.^^ 

Ordinarily  in  a  grant  of  lands  under  the  name  of  a  "beach" 
or  a  boundary  of  lands  upon  or  by  or  along  a  "beach,"  the 
word  would  be  held  synonymous  with  the  shore  or  strand, 
and  as  having  reference  to  and  including  only  the  lands 
washed  by  the  sea,  and  between  high-water  mark  and  low- 
water  mark.  "In  the  case  of  a  boundary,"  observes  Allen,  J., 
"it  would  be  necessary  so  to  restrict  the  meaning  of  the  word 
in   order  to  have  a  certain  and  definite  limit  to  the  lands 

water  in  its  natural  state  has  no  -^^  Commissioners     v.     People,    5 

current,  is  a  lake  and  not  a  stream  Wend.    (N.  Y.)    447;     State  v.  Gil- 

of  water.     Trustees  of  Schools  v.  manton,    9   N.    H.    463;     Lowell   v. 

Schroll,  120  111.  509.  Robinson,  16  Me.  360;    Fletcher  v. 

30  See  Gouverneur  v.  Ice  Co.  134  Phelps,  28  Vt.  257;    and  see  Ang. 

N.   Y.   355;     where   the   subject   is  Waters,  §  44. 

exhaustively  discussed;    also,  Har-  32  Waterman  v.  Johnson,  13  Pick, 

din  V.  Jordan,  140  U.  S.  371;    In-  (Mass.)    265. 

diana  v.   Milk,   11   Fed.  Rep.   389;  3.".  Cook  v.  McClure,  58  N.  Y.  437. 

Ridgway    v.    Ludington,    58    Ind.  3 1  Trustees  of  East  Hampton  v. 

248.  Kirk,  68  N.  Y.  459. 


THE    LAND    CONVEYED. 


467 


p;rant('(l.  If  held  to  mean  tho  sandy  land  or  flats  botwoon  the 
iijjland  and  the  shore,  which  is  frequently  formed  by  a  change 
of  the  shore  line,  and  is  not  unfrequently  called  a  'beach,' 
it  would  be  quite  too  uncertain  and  indefinite  to  constitute 
a  line  bounding  lands  granted. "^^  It  may  sometimes  happen, 
however,  that  the  situation  of  the  lands  j^ranted,  or  other 
circumstances,  may  authorize  a  ditTerent  interpretation,  and 
the  word  "beach"  may  be  taken  to  mean  the  sandy  plain  or 
flat  which  lies  between  the  upland  and  the  actual  shore  line; 
and  this  view  has  been  adopted  in  some  cases  where  a  substi- 
tution of  the  word  "flat"  has  been  made  for  "shore"  in  order 
to  give  effect  to  the  manifest  intention  of  the  parties.^^ 

§  393.  Tidal  waters.  By  the  rules  of  the  common  law  only 
those  waters  where  the  tide  ebbs  and  flows  are  deemed  navi- 
gable in  law,  notwithstanding  they  may  be  so  in  fact;  and 
it  is  to  the  influence  of  this  rule  that  the  general  doctrine  of 
riparian  titles  on  non-navigable  w'ater-courses  owes  its  origin 
and  continued  existence.  Grants  of  land  bounded  on  tidal  or 
navigable  waters  are  deemed  to  extend  only  to  high-water 
mark,^^  which  is  the  line  defined  by  the  usual  high  tide,^^ 
while  the  title  to  the  strip  of  land  which  lies  between  high 
and  low-water  mark  remains  in  the  government  for  the  use 
of  the  public.^'* 


■is  Trustees  of  East  Hampton  v. 
Kirk,  68  N.  Y.  459. 

3'i  In  Storer  v.  Freemafi,  6  Mass. 
435,  Chief  Justice  Parsons  in  inter- 
preting a  deed  substituted  the  word 
"flats"  for  "shore,"  in  the  descrip- 
tion, to  give  effect  to  the  intent  of 
the  parties,  and  held  that  the  land 
conveyed  extended  to  the  "flats," 
but  did  not  include  any  part  of 
them.  The  reasons  given  by  the 
chief  justice  in  this  case  for  re- 
stricting "shore"  to  the  ground  be- 
tween ordinary  high-water  mark 
and  low-water  mark  are  equally  ap- 
plicable to  a  boundary  upon  or  by 
or  along  a  beach.  He  says:  "It 
cannot  be  considered  as  including 
any  ground  always  covered  by  the 
sea;     for   then   it   would   have   no 


definite  limit  on  the  sea-board. 
Neither  can  it  include  any  part  of 
the  land,  for  the  same  reason." 
The  definition  of  the  shore  is  an 
accurate  definition  of  a  beach,  hav- 
ing respect  to  the  nature  and  situ- 
ation of  both.  Both  words  denote 
land  washed  by  the  sea.  See  Lit- 
tlefield  V.  Littlefield,  28  Me.  180; 
Phillip  V.  Rhodes,  7  Met.  (Mass.) 
322. 

■'•Adams  v.  Pease,  2  Conn.  481; 
Canal  Com'rs  v.  People,  5  Wend. 
(N.  Y.)  423;  Haight  v.  Keokuk,  4 
Iowa,  199;  Mayhew  v.  Norton,  17 
Pick.   (Mass.)   357. 

ss  Seaman  v.  Smith,  24  111.  521. 

30  Seaman  v.  Smith,  24  111.  521; 
Chapman  v.  Kimball,  9  Conn.  38. 


4G8  THE    LAND    CONVEYED. 

The  terms  "high"  and  "low"  water  mark  were  first  used 
with  reference  to  tidal  waters  and  have  little  significance 
when  applied  to  inland  streams  or  standing  bodies  of  water. 
High  water  mark  on  fresh  water  rivers  and  lakes  is  practically 
the  point  when  the  water  impresses  upon  the  soil  in  such  a 
manner  or  for  such  periods  as  prevent  vegetation,  and  has 
no  reference  to  the  lines  reached  in  case  of  freshets  or  other 
temporary  disturbing  circumstances.**^ 

§  394.  Riparian  boundary  as  affected  by  plat.  The  ques- 
tions just  discussed  and  the  conclusions  reached  are  subject' 
to  some  modification  when  considered  in  connection  with 
subdivisions  and  plats.  It  is  conceded  that  the  owner  of  lands 
bounded  by  water  may  confine  his  grant  of  same  within  such 
specific  limits  as  he  may  choose,  and  hence,  a  plat,  which 
unequivocally  fixes  the  dimensions  of  the  land  conveyed,  may 
exclude  the  stream  and  the  ground  contiguous  thereto.  But 
where  a  plat  shows  the  water  as  a  boundary,  notwithstanding 
that  the  land  has  been  divided  into  lots  with  distinct  lines  and 
distances  marking  their  external  dimensions,  the  rule  yet 
seems  to  be  that  the  water  must  still  be  regarded  as  the  true 
boundary,  for  the  law,  in  such  case,  will  not  presume  that 
the  grantor  has  reserved  any  proprietary  rights  in  front  of 
the  land  conveyed."*! 

§  395.  Exception  from  riparian  grant.  No  question  can 
ordinarily  arise  with  respect  to  the  ultimate  line  of  riparian 
ownership  along  the  high  seas  or  great  inland  lakes,  as  the 
universally  conceded  rule  makes  it  extend  only  to  high-water 
mark,  whether  abutting  upon  tidal  waters,  an  inland  sea  or 
the  great  lakes,  while  the  title  to  all  lands  beyond  high-water 
mark  or  under  water  is  vested  in  the  state.  But  with  respect 
to  the  "shore,"  and  the  extent  of  proprietorship  therein, 
serious  and  complicated  questions  will  frequently  arise  out 
of  the  language  employed  by  the  parties  in  describing  the 
subject-matter  of  the  grant. 

It  cannot  be  doubted  that  a  riparian  owner,  conveying  lands 
adjacent  to  navigable  waters,  may  so  limit  his  grant  as  to 
reserve  to  himself  not  only  his  riparian  privileges  in  the  water, 

40  Dow  V.  Electric  Co.  69  N.  H.  Co.  56  Minn.  513;  Houghton  v.  R. 
498;    In  re  Minnetonka  Lake  Impt.    R.  Co.  47  Iowa  370. 

41  Watson  V.  Peters,  26  Mich.  508. 


THE    LAND    CONVEYED.  469 

but  also  sul»s('(ni('ii(  accictions  to  the  soil  formed  by  the  oper- 
alioii  of  iialural  causes.'-  This,  it  is  said,  follows  necessarily 
from  the  absolute  ri^^ht  whicli  the  owner  has  to  impose  such 
terms  and  conditions  ujion  his  "grants  as  he  may  deem  neces- 
sary or  expedient.  A  reservation  or  excej)tion  of  this  character 
may  result  from  the  terms  used  without  an  express  declara- 
tion of  intention — as  where  a  line  is  extended  to  the  "shore" 
or  "beach,"  and  then  projected  in  a  direct  coui'se  to  some 
other  point,  not  following  the  natural  sinuosities  of  the  shore 
or  water-front,  the  land  so  described  forminj^  a  matliematical 
parallelojiram  or  other  i)lane  tigure  distinctly  op[)osed  to  the 
theory  of  a  diversion  to  accommodate  the  irregularities  of  a 
varying  line.'-' 

§  396.  Mines  and  minerals.  As  has  been  shown,  an  estate 
of  inheritance  in  mines  may  be  conveyed  distinct  from  the 
fee  of  The  land,  which  may  remain  in  the  vendor  or  another. 
Such  an  estate  is  not  inconsistent  with  the  general  title  to  the 
lands,  in  which  the  mines  are  situated,  remaining  in  the 
vendor.  When  not  thus  severed  from  the  general  title  of  the 
lands  in  which  they  are  situated  they  are  part  of  the  lands 
themselves,  and  will  pass  with  such  without  being  expressly 
mentioned  in  the  instrument  of  conveyance.  Yet  in  the  con- 
struction of  grants  of  "mines  and  minerals"  courts  have  often 
experienced  great  embarrassment  in  giving  satisfactory 
answers  to  the  questions  raised  by  the  employment  of  those 
terms.  Ordinarily  in  such  a  grant  it  is  clear  that  the  vendor 
did  not  intend  to  include  everything  embraced  in  the  mineral 
kingdom  as  distinguished  from  what  belongs  to  the  animal 
and  vegetable  kingdoms;  for,  if  he  did,  he  i)arted  with  the 
soil  itself.  Such  a  construction,  therefore,  would  be  inconsist- 
ent with  and  repugnant  to  the  tenor  of  the  grant.  On  the 
other  hand,  there  exists  no  more  propriety  in  confining  the 
meaning  of  the  terms  to  any  one  or  more  of  the  subordinate 
divisions  into  whidi  the  mineral  kingdom  has  been  divided 
by  chemists — either  earthy,  metallic,  saline  or  bituminous 
minerals.'^ 

••^People  V.  Jones,  112  N.  Y.  597.  ■»*  Mineral     has     been     defined: 

•»•'>  See  People  v.  Jones,  112  N.  Y.  "Those  bodies  which  are  desHtute 

597;    Higinbotham  v.  Stoddard,  72  of   organization,   and    which   natu- 

N.    Y.    94;     and    see    Wharton    v.  rally  exist  within  the  earth  or  at 

Brick,  49  N.  J.  L.  289.  its  surface."    Cleveland's  Mineral- 


470  THE    LAND    CONVEYED. 

In  such  a  case  the  ordinary  rules  of  construction  must 
govern.  The  circumstances  surrounding  the  parties,  and 
relating  to  the  subject-matter  at  the  time  the  grant  was  made, 
may  be  shown  as  an  aid  to  interpretation;  but  no  extrinsic 
evidence  is  admissible  for  the  purpose  of  showing  that  the 
vendor  intended  to  confine  the  operation  of  the  words  to  any 
particular  class  of  minerals  or  to  limit  or  define  their  meaning 
for  the  purposes  of  that  particular  agreement.  Parol  evidence 
may  be  introduced  to  show  the  scientific  and  popular  meaning 
of  the  words  "mines,"  ''minerals,"  etc.,  under  an  exception  to 
the  general  rule;  for  where  any  doubt  arises  upon  the  true 
sense  and  meaning  of  the  words  themselves,  or  any  difficulty 
as  to  their  application  under  the  surrounding  circumstances, 
the  sense  and  meaning  of  the  language  may  be  investigated 
and  ascertained  by  evidence  dehors  the  instrument  itself.  In 
some  cases  parol  evidence  is  admissible  ex  necessitate:  as, 
where  an  ambiguity  is  created  by  extrinsic  evidence,  it  may 
be  removed  in  the  same  manner.'*^ 

§  397.  Operation  of  erroneous  deed.  While  a  deed  cannot 
be  given  legal  effect  as  a  conveyance  for  any  other  or  different 
property  than  that  which  it  purports  to  convey,  nor  be 
extended  by  implication,  yet  a  deed  misdescribing  the  land 
conveyed  will  still  be  sufficient  to  give  an  equitable  title  there- 
to, and  a  subsequent  deed  correcting  the  mistake  will  perfect 
the  same  into  a  legal  title.^*^ 

ogy,  p.  1.  "Substances  dug  out  question.  The  parties  must  there- 
of the  earth  or  obtained  from  fore  give  evidence  as  to  the  char- 
mines."  Bakewell's  Mineralogy,  acter  of  the  material,  and  they 
p.  7.  may  show  that  it  is  or  is  not  em- 
45  As  where  the  allegation  is  that  braced  in  the  scientific  and  popu- 
the  defendants  are  removing  from  lar  use  of  the  terms  employed  by 
complainant's  soil  a  particular  the  vendor.  See  Hartwell  v.  Cam- 
substance  or  material.  The  an-  man,  2  Stock.  Ch.  (N.  J.)  128.  In 
swer  is  that  the  defendants  have  this  case  complainant  claimed  that 
a  right  to  remove  it  because  it  was  the  grant  only  included  copper; 
conveyed  to  them  under  the  term  the  defendant  that  it  included 
"mines  and  minerals."  The  com-  paint  clay.  The  court  held  with 
plainant  rejoins  that  those  terms  the  defendant, 
did  not  include  the  substance  in  46  Fitch  v.  Gasser,  54  Mo.  267. 


CHAPTER    XV. 
THE  ESTATE  CONVEYED. 

§  398.  Generally.  §  405.  Creation  of  life  estate. 

399.  Rule  of  construction.  406.  The  rule  in  Shelley's  case. 

400.  Legal  and  equitable  estates.  407.  Creation  of  co-tenancies. 

401.  Words   of   inheritance   and  408.  Future  estates. 

limitation.  409.     Perpetuities. 

402.  Effect   of   absolute   convey-       410.    Entailments. 

ance.  411.     Homesteads. 

403.  Effect  of  release  and  quit-       412.     Incidents   of   the   grant   as 

claim.  connected    with    use    in- 

404.  Conveyance    of    estates    in  tended. 

fee. 

§  398.  Generally.  While  it  is  customary,  and  not  alto- 
gether improper,  to  speak  of  the  land  as  the  subject-matter 
of  the  sale,  yet  in  strict  legal  contemplation  it  is  the  vendor's 
rights  and  interests  therein  as  comprehended  in  the  generic 
term  '^estate"  that  are  actually  bought  and  sold.  The  primary 
object  of  the  deed  of  conveyance  is  to  evidence  such  sale,  and 
in  former  times  no  little  ingenuity  was  displayed  by  convey- 
ancers in  framing  grants  of  estates  to  meet  and  keep  ])ace 
with  the  refined  subtilties  of  courts,  and  the  English  works 
as  well  as  a  few  of  the  earlier  American  treatises  are  rei)lete 
with  much  curious  but  now  practically  obsolete  information 
upon  this  point.  The  real  reform  in  American  convej'ancing 
has  been  effected  during  the  last  fifty  years;  and  while  the 
marked  ditferences  in  the  land  system  of  the  United  States, 
as  compared  with  European  nations,  have  at  all  times  been 
conducive  to  simpler  methods  of  conveyancing  than  were 
elsewhere  employed,  the  earlier  repoi-ts  still  show  that  the 
"rule  in  Shelley's  case,"  and  kindred  legal  abstractions,  were 
at  one  time  potent  factors  in  the  jtroduction  of  much  learned 
discussion,  profound  opinions  and  deep  ;ind  exhaustive 
reasoning. 

The  sjiirit  of  "reform,"  which  from  the  inception  of  the 
government  has  been  most  active  in  tlu^  abrogation  of  old 
laws,  customs  and  usages,  lias  made  the  creation  of  estates 
a  most  sinijile  and  in  a  majoiity  of  cases  easily  understood 

471 


472  THE    ESTATE    CONVEYED. 

matter,  and  conveyancing  has  lost  its  position  as  an  intricate 
and  highly  refined  science.  Technical  words  of  grant  and 
limitation  were  formerly  a  necessity  to  measure  and  define 
the  nature  and  extent  of  the  estate  conveyed,  but  so  com- 
paratively valueless  and  without  effect  have  they  become  that 
the  highest  estate  known  to  our  law  may  be  created  and  trans- 
ferred without  them.  Covenants  that  formerly  called  for 
highly  artificially  constructed  sentences  may  now  be  raised 
by  a  single  word,  and  in  every  other  department  of  convey- 
ancing the  departure  from  old  methods  is  equally  noticeable. 

Good  conveyancing  still  calls  for  apt  language  in  the  fram- 
ing of  deeds  to  raise  and  convey  estates;  and  notwithstanding 
that  the  law  will  supply  by  implication  many  of  the  draughts- 
man's omissions,  yet  it  will  not  raise  or  create  estates  in 
opposition  to  expressed  intent,  however  erroneous  such 
expression  may  be;  nor  will  it  cut  down  estates  which  result 
by  implication  because  of  a  neglect  to  insert  the  proper 
language  to  create  such  lesser  estates.  Circumstances  may 
induce  a  modification  of  this  rule  where  equity  is  appealed 
to  for  relief  in  cases  of  fraud,  accident  or  mistake,  but  at  law 
the  rule  holds  good  without  exception. 

§  399.  Rule  of  construction.  The  legitimate  purpose  of  all 
construction  of  instruments  in  writing  is  to  ascertain  the 
intention  of  the  parties  making  the  same;  and,  when  this  is 
determined,  effect  must  be  given  thereto  accordingly,  unless 
to  do  so  will  violate  some  established  and  dominating  rule  of 
law.  This  is  so  as  well  in  respect  to  the  estate  granted  as  to 
the  parties,  the  thing  granted,  or  the  title.  As  it  cannot  be 
presumed  that  words  or  terms  in  a  deed  of  conveyance  were 
used  without  a  meaning,  or  without  an  intention  of  having 
some  effect  given  to  them,  therefore,  if  it  can  be  done  consist- 
ently with  the  rules  of  law,  that  construction  will  be  adopted 
which  will  give  effect  to  the  instrument  and  to  each  word  and 
term  employed,  rejecting  none  as  meaningless  or  repugnant. 
So,  in  the  construction  of  estates,  the  nature  and  quantity  of 
interest  or  estate  granted  by  a  deed  is  to  be  ascertained  from 
the  deed  itself,  and  is  to  be  detennined  by  the  court  as  a 
matter  of  law.' 

1  Lehndorf  v.  Cope,  122  111.  317;     v.  Sisson,  13  N.  J.  Eq.  178;  Bond  v. 
T.ippett  V.  Kelley,  46  Vt.  516;  Cald-    Fay,  12  Allen  (Mass.)  88. 
well  V.  Fulton,  31  Pa.  St.  489;  Price 


THE    ESTATE    CONVEYED.  473 

§400.  Legal  and  equitable  estates.  Estates  an*  classed  a« 
lo«jal  and  (MiuLlabIc,  the  foiiiier  beinj;  lliose  whicli  have  their 
oii^'in  and  derive  their  qualities  and  incidents  from  the  com- 
mon law,  and  the  latter  those  which  are  derived  from  the  rules 
and  principles  which  ])revail  in  courts  of  equity.  Formerly 
every  estate  was  le^jal,  in  the  proper  acceptation  of  that  term, 
and  in  the  contemplation  of  law  there  is  and  can  be  but  one 
estate,  which  may  properly  be  denominated  the  legal  estate. 
But  the  introduction  of  what  were  known  as  uses,  and  the 
subsequent  origination  of  trusts,  where  one  party  held  the 
title  but  upon  some  trust  or  contidence  for  another,  early  led 
the  court  of  chancery  to  take  cognizance  of  the  rights  of  the 
beneficiary,  and  thus  there  grew  up  a  double  ownership  of 
lands  thus  situated,-  the  interests  whicli  were  cognizable  as 
such  only  in  a  court  of  equity  taking  the  name  of  equitable 
to  distinguish  them  from    legal  estates. 

As  a  rule  any  legal  conveyance  will  have  the  same  effect 
upon  an  equitable  estate  that  it  would  have  upon  the  like 
estate  at  law;  and  whatever  is  true  at  law  of  the  latter  is 
true  in  equit}^  of  the  former.  Thus,  the  rule  in  Shelley's  case, 
where  it  is  peraiitted  to  operate  as  a  rule,  applies  alike  to 
equitable  and  legal  estates,  and  an  equitable  estate-tail  may 
be  barred  in  the  same  manner  as  an  estate-tail  at  law."^ 

§  401.  Words  of  inheritance  and  limitation.  It  is  an  un- 
varying rule  of  the  common  law  that  an  estate  of  inheritance 
cannot  be  created  by  deed  without  the  employment  of  the 
word  ''heirs  ;"^  and  in  those  states  where  this  rule  has  not 
been  altered  by  statute,  or  modified  or  relaxed  by  judicial 
construction,  no  synonym  can  supply  the  omission  of  this 
word,  nor  can  the  legal  construction  of  the  grant  be  affected 
by  the  intention  of  the  parties.''  In  conformity  to  this  rule 
it  is  customary  to  insert  words  of  limitation  in  the  premises 
of  the  deed;  and  this  practice,  which  is  sanctioned  if  not 
enjoined  by  all  the  rules  of  good  conveyancing,  is  a  desirable 

-  Upon  the  principle  that  he  for  as  has  been  said,  "a  fee-simple 
whose  use  the  land  was  designed  doth  pass  by  the  intent  of  the  de- 
was  the  rightful  owner  thereof.  visor;  but  in  feoffments  and  grants 

•■>  Croxall  V.  Shererd.  5  Wall.   (U.  the  word  'heirs'  is  the  only  wor  1 

S.)   268.  that   will    make   an    estate   of   in- 

*  In  this  respect  deeds  differ  from  heritance."     Coke.  Litt.  S.  r-tJ. 

testamentary  papers;  for  in  a  will.  '■  Kearney   v.    Macoml).    IG   X.   J. 


474  THE    ESTATE    CONVEYED. 

one  to  follow,  even  where  its  necessity  is  no  longer  recognized. 
But  it  is  also  a  maxim  of  the  highest  antiquity  in  the  law  that 
all  deeds  shall  be  construed  favorably,  and  as  near  the  appa- 
rent intention  of  the  parties  as  is  possible,  consistent  with 
established  legal  rules;  and  hence  while  to  create  a  fee  the 
limitation  must  be  to  ''heirs,"  it  seems  that  this  may  be  accom- 
plished either  in  direct  terms  or  by  immediate  reference,  and 
that  it  is  not  essential  that  the  word  be  located  in  any  par- 
ticular part  of  the  grant.^ 

The  practical  application  of  the  foregoing  rules,  however, 
is  now  very  much  restricted  in  the  United  States;  for  while 
words  of  limitation  were  once  of  the  very  essence  of  the  deed, 
yet  by  reason  of  sweeping  statutory  provisions,  generally 
enacted  throughout  the  Union,  they  are  now  comparatively 
without  value  or  legal  effect.  Although  invariably  inserted 
by  careful  conveyancers,  they  are,  in  most  of  the  states,  no 
longer  necessary  to  create  or  convey  a  fee;'^  and,  as  a  general 
rule,  every  grant  of  lands  will  pass  all  the  estate  or  interest 
of  the  grantor,  unless  a  different  interest  shall  appear  b}' 
express  terms  or  necessary  implication — the  question  of  the 
estate  transferred  being  determined  rather  by  the  end  sought 
to  be  attained  by  the  grantor  than  by  the  language  employed.''' 

In  order  to  create  a  less  estate  than  a  fee,  it  is  not  necessary 
that  there  should  be  express  words  of  limitation,  either  under 
the  statute  or  at  common  law.  It  is  sufficient  for  that  pur- 
pose if  it  appear,  by  necessary  implication,  that  a  less  estate 

Eq.  189;  Adams  v.  Ross,  30  N.  J.  North  Carolina,  Oregon,  Tennessee, 

L.  505.     See,  also,  Jackson  v.  Mey-  Texas,    Virginia    and    Wisconsin, 

ers,  3  Johns.   (N.  Y.)   388.  They  would  seem  to  be  necessary 

6  See  4  Kent,  Com.  6;  Shep.  in  Connecticut,  Delaware,  Florida, 
Touch.  101.  Where  words  of  in-  Kentucky,  Louisiana,  Maine,  New 
heritance  appear  only  in  one  part  Jersey,  Ohio,  Rhode  Island  and 
of  the  deed,  which  is  inartificially  Vermont.  In  some  states,  while 
worded,  but  the  intention  to  pass  there  is  no  express  provision,  the 
a  fee  appears  from  the  entire  in-  statutory  forms  would  imply  that 
strument,  it  will  be  so  construed,  words  of  inheritance  are  unneces- 
Hicks  V.  Bullock,  96  N.  C.  164.  sary. 

7  Words  of  inheritance  are  no  s  Hawkins  v.  Chapman,  36  Md. 
longer  necessary  in  Alabama,  Ar-  83;  Kirk  v.  Burkholtz,  3  Tenn.  Ch. 
kansas,  California,  Dakota,  Colo-  425;  Lehndorf  v.  Cope,  122  111.  317. 
rado,  Georgia,  Illinois,  Indiana,  And  see  Hicks  v.  Bullock,  96  N.  C. 
Iowa,  Kansas,  Maryland,  Minne-  164;  Henderson  v.  Mack,  82  Ky. 
sota,    Mississippi,    Missouri,    Mon-  379. 

tana,  Nebraska,  Nevada,  New  York, 


THE    ESTATE    CONVEYED.  47o 

WuH  <;rant('(l.''  The  better  aud  safer  way,  however,  is  to 
expressly  liiiiil  a  lesser  estate  and  this  becomes  almost  an 
iinj)erallve  iiile  in  those  states  where  a  deed  is  ])resunied  to 
convey  a  Ice  nnless  some  inferior-  <'state  is  exi)ressly  men- 
tioned or  results  by  necessary  iniplication. 

Corporations,  like  natnral  j)ersons,  may  lake  land  by  every 
method  of  conveyance  known  to  the  law.  Having  no  "heirs'' 
it  is  customary  to  insert  the  term  "successors"  as  a  word  of 
limitation,  and  the  employment  of  such  term  has  been  held  to 
create  and  pass  a  fee.'"  It  does  not  seem,  however,  that  such 
word  is  necessary  to  convey  a  fee,  independent  of  the  statute 
which  i)rovides  for  a  fee  unless  restrained  by  express  terms 
or  necessary  implication;  for  admitting  that  such  a  grant  is 
strictly  only  a  life  estate,  yet  as  a  corporation,  unless  of 
limited  duration,  never  dies,^'  such  estate  for  life  is  perpetual 
or  e(|uivalent  to  a  fee-simple,  and  therefore  the  law  allows 
it  to  be  one,'-  while  it  has  been  held  that  a  deed  to  a  corpor- 
ation is  presumably  a  conveyance  in  fee,  although  the  corpor- 
ation is  chartered  only  for  a  term  of  years.' ^ 

§  402.  Effect  of  absolute  conveyance.  It  is  now  a  general 
statutory  rule  that  every  conveyance  of  real  property  shall 
pass  all  the  estate  of  the  grantor  therein,  unless  a  different 
intent  shall  appear  by  express  terms  or  necessary  implication. 
So  where  a  deed  purports  to  convey  all  the  interest  and  title 
of  .the  grantor,  effect  will  be  given  to  it  accordingly,  although 
he  actually  held  a  greater  interest  than  he  at  the  time  of  the 
conveyance  supposed  he  owned.'-*  So,  too,  it  has  been  held 
that  if  the  terms  of  a  deed  clearly  show  that  it  was  meant  to 
pass  an  absolute  estate  in  the  land,  and  not  merely  the  estate 
which  the  grantor  had  at  the  time,  it  will  bind  and  pass  every 
estate  or  interest  which  may  vest  in  him  subsequently  to  its 
execution,  and  this  though  it  contain  no  warranty.'^     This, 

»  Lehndorf  v.  Cope,  122  111.  317.  is  Asheville  Division  v.  Aston,  92 

1"  Storrs  Agricultural   School  v.  N.  C.  578. 

Whitney,  54  Conn.  342.  i*  A    party    is    bound    to    know 

11  In  a  majority  of  the  states  enough  about  his  title  not,  by 
commercial  manufacturing  and  his  want  of  knowledge  of  it,  to  mis- 
trading  corporations  are  now  char-  -lead  a  purchaser.  Thomas  v.  Chi- 
tered  for  a  term  of  years.  cago.  55  111.  403. 

12  Overseers  v.  Sears,  22  Pick.  i'- Taggart  v.  Risley,  4  Oreg.  235. 
(Mass.)  122;  Congregational  So-  By  statute,  in  some  states,  this  re- 
ciety  V.  Stark.  34  Vt.  243.  suit  follows. 


4TG  THE    ESTATE    CONVEYED. 

however,  is  contrary  to  .the  general  policy  of  the  law  which 
confines  the  oflBce  of  a  conveyance  to  the  transmission  of  what- 
ever estate  the  grantor  may  possess;  and  while  after-acquired 
title  is  permitted  to  inure  on  the  principle  of  estoppel,  it  is 
usual  only  when  covenants  of  sufificient  capacity  have  been 
inseited  in  the  deed.  But  this  latter  rule,  while  of  general 
application  and  observance,  is  not  without  exception;  and 
under  the  doctrine  of  relation,  as  applied  for  the  protection 
of  bona  fide  purchasers,  if  a  party  having  the  equitable  title 
to  land  and  being  entitled  to  the  legal  title  thereof,  conveys 
the  same  by  a  deed  purporting  to  transfer  the  entire  estate, 
and  subseipiently  acquires  the  legal  title,  it  will  inure  to  his 
grantee,  notwithstanding  such  deed  was  made  without  cove- 
nants of  warranty  or  further  assurance.^  *^  This  doctrine  pro- 
ceeds upon  the  principle  that,  where  there  are  divers  acts 
concurrent  to  make  a  conveyance,  estate  or  other  thing,  the 
original  act  will  be  preferred,  and  to  this  the  other  acts  will 
have  relation.^'^ 

It  is  a  further  rule  that  a  grantor  cannot  destroy  his  own 
grant,  however  much  he  may  modify  it  or  load  it  with  condi- 
tions, and,  where  an  estate  has  once  b^en  granted  in  the  deed, 
no  subsequent  clause  can  operate  to  nullify  it.  Thus,  if  the 
deed  purports  to  convey  all  of  the  interest  of  the  grantor,  but 
a  clause  is  also  inserted  stating  that  the  interest  conveyed 
is  only  that  acquired  by  the  grantor  in  some  particular  man- 
ner or  from  some  particular  person,  the  conveyance  should  be 
interpreted  in  the  light  of  the  extrinsic  facts,  and  the  grant 
would  be  a  conveyance  of  whatever  interest  the  grantor  had, 
whether  acquired  as  stated  or  otherwise  ;i^    and  if  it  should 

16  Welch  V.  Button,  79  111.  465;  i^  Miner's  Appeal,  61  Pa.  St.  283. 
Jackson  v.  Ramsay,  3  Cow.  (N.  Y.)  In  this  case  the  grantor,  describing 
75.  See,  also,  Crowley  v.  Wallace,  herself  as  J.,  the  widow  of  M.,  con- 
12  Mo.  145,  veyed  to  T.,  "his  heirs,  executors, 

17  The  fiction  of  relation  is  that  administrators  and  assigns,  all  her 
an  intermediate  hona  fide  alienee  estate,  right,  title,  interest,  claim 
of  the  incipient  interest  may  claim  and  demand  whatsoever"  in  a  cer- 
that  the  deed  issued  to  pass  the  tain  piece  of  land,  "to  have  and  to 
legal  title  inures  to  his  benefit  by  hold  the  premises  hereby  granted," 

.  an    ex   post   facto    operation,    and  etc.,  unto  T.,  his  heirs,   etc.,  "for 

thus  he  receives  the  same  protec-  and  during  the  life  of  the  said  J.; 

tion  at  law  that  a  court  of  equity  the  interest  hereby  conveyed  being 

could  afford  him.   Lessee  of  French  an  estate  of  freehold  for  and  dur- 

V.  Spencer,  21  How.  (U.  S.)  228.  ing  the  life  of  said  J.,  and  being 


THE    ESTATE    CONVEYED. 


m 


appear  thai  llic  ^ranloi-  hail  acqiiiicil  no  iiitiTi'Sl  iu  the  man- 
ner specified  or  from  the  pi  rsdii  named,  but  did  own  an 
interest  a((|iiii('d  fiom  another  person,  the  interest  thus 
acquired  would  jjass.^-'  This  is  upon  the  principle  that  a  deed 
is  to  be  so  construed  as,  if  possible,  to  j^ive  eil'ect  to  it  as  a 
convt^jance;  and  if  it  contains  a  clause  which  is  repu<;iuint  to 
the  general  intention  of  the  deed,  this  clause  is  void.-'^  liut 
where  the  deed  specifically  purijorts  to  convey  only  a  certain 
interest  or  an  interest  ac(piired  in  a  certain  manner,  this  has 
been  heUl  to  exclude  any  interest  acquired  iu  any  other  man- 
nei-.  Thus,  if  the  deed  purports  to  convey  the  interest  devised 
to  the  {grantor  in  certain  property,  it  does  not  convey  an  inter- 
est descending  to  him.^^ 

As  a  general  proposition,  a  deed  will  not  operate  to  convey 
a  greater  interest  than  it  purports  to,  although  the  grantor 
has  a  power  to  convey  more  than  is  described. -- 

^  403.  Effect  of  release  and  quitclaim.  A  deed  by  way  of 
release  and  quitclaim  of  all  the  grantor's  right  and  title,  pur- 
ports to  convey  nothing  more  than  the  interest  or  estate  of 
which  the  grantor  is  seized  or  possessed  at  the  time,  and  does 
not  operate  to  pass  or  bind  an  interest  not  then  in  existence.^^ 

It  has  been  held,  however,  that  this  principle  is  applicable 
only  to  a  quitclaim  deed  iu  the  strict  and  proper  sense  of  that 
species  of  conveyance,  and  that  if  the  deed  bears  on  its  face 
evidence  that  the  grantor  intended  to  convey,  and  the  grantee 
expected  to  become  invested  with,  an  estate  of  a  particular 
description  or  quality,  and  that  the  bargain  had  proceeded 
upon  that  footing  between  the  parties,  then,  although  it  may 


all  the  interest  of  her,  the  said  J., 
in  the  estate  of  the  said  M.,  de- 
ceased, as  his  widow,  of,  in  and 
to  the  premises  above  described." 
Held,  that  the  grant  was  a  con- 
veyance of  whatever  interest  the 
grantor  had  as  widow  or  otherwise. 
And  see  Little  v.  King,  64  N.  C. 
361 ;  Green  Bay,  etc.  Co.  v.  Hewett, 
55  Wis.  96:  Maker  v.  Lazell.  83  Me. 
562. 

10  Maker  v.  Lazell,  83  Me.  562. 

2"  Wilcoxson  v.  Sprague,  51  Cal. 
640. 


-■1  Munds  v.  Cassidey,  98  N.C.  558. 

-■-  As  where  A.,  holding  in  his 
own  right  a  moiety  of  the  property 
in  question,  and  having  a  power  of 
attorney  to  convey  the  interest  of 
B.,  the  owner  of  the  other  moiety, 
made  a  deed  of  mortgage  of  the 
whole,  without  in  terms  undertak- 
ing to  convey  the  interest  of  B. 
Held,  that  the  deed  conveyed  only 
the  interest  of  A.  Shirras  v.  Caig, 
7  Cranch  (U.  S.)  34. 

- '  Van  Rensselaer  v.  Kearney,  11 
How.  (U.  S.)  297. 


4^8  THE    ESTATE    CONVEYED. 

not  contain  covenants  of  tide  in  the  leclinical  sense  of  the 
term,  still  the  le^al  operation  and  efi'ect  of  the  instrument  will 
be  as  bindinj?  on  the  grantor  and  those  claiming  under  him, 
in  respect  to  the  estate  thus  described,  as  if  a  formal  covenant 
to  that  effect  had  been  inserted;  at  least  so  far  as  to  estop 
them  from  ever  afterwards  denying  that  he  was  seized  of  the 
particular  estate  at  the  time  of  the  conveyance.^^ 

In  construing  releases,  especially  where  the  same  instru- 
ment is  to  be  executed  by  various  persons  standing  in  various 
relations  and  having  various  kinds  of  claims  against  the 
releasee,  general  words,  though  the  most  comprehensive,  are 
to  be  limited  to  particular  demands  where  it  manifestly 
appears,  by  the  consideration,  by  the  recitals,  and  by  the 
nature  and  circumstances  of  the  demands,  to  one  or  more  of 
which  it  is  proposed  to  apply  the  release,  that  it  was  so 
intended  to  be  limited  by  the  parties.^^ 

§  404.  Conveyance  of  estates  in  fee.  The  highest  estate  in 
land  known  to  our  law  is  called  the  fee,  or,  as  it  is  sometimes 
written,  the  fee-simple — a  term  indicative  of  absolute  and 
unqualified  ownership  with  all  its  incidents.^^^  The  name 
itself  is  borrowed  from  the  feudal  system  of  England,  and 
originally  denoted  the  tenure  by  which  the  land  w^as  held; 
but  aside  from  this  there  is  nothing  feudal  about  it,  while  the 
title  to  all  lands  in  the  country  is  strictly  allodial. 

In  all  sales  of  land,  unless  some  lesser  estate  is  specifically 
mentioned,  the  subject  of  the  sale  is  understood  to  be  the  fee. 
Formerly  much  care  and  circumspection  was  required  in 
drawing  conveyances  of  the  fee,  and  parties  not  infrequently 
defeated  their  own  intentions  by  the  ignorant  or  negligent 
omission  of  words  which  were  considered  essential  to  the 
creation  of  this  estate.  These  were  known  as  words  of  limi- 
tation, and  consisted  of  the  words  "heirs"  or  "heirs  and  assigns 
forever."  Great  importance  was  attached  to  their  use,  and, 
notwithstanding  the  parties  may  have  intended  to  convey  the 

21  See  Van   Rensselaer  v.  Kear-  ditional  and  fee-simple  qualified  or 

ney,  11  How.  (U.  S.)  297.  base  fee,  and  to  some  extent  this 

^n  Rich  V.  Lord,  18  Pick.  (Mass.)  classification   seems  to  have  been 

322;  Lyman  v.  Clark,  9  Mass.  235.  recognized  by  American  courts  dur- 

26  The  fee-simple  was  divided  by  ing  very  recent  years;  yet,  as  was 

Coke  and  the  earlier  writers  into  observed  by  Mr.  Preston   (1  Prest. 

fee-simple  absolute,  fee-simple  con-  Est.  429),  in  point  of  accuracy  it 


THE    ESTATE    CONVEYED.  479 

fee.  courts  refused  to  give  effect  to  such  intention  where  all 
mention  of  the  heirs  was  omitted.  It  is  still  customary  to 
insert  these  words  in  deeds  of  conveyance,  but  they  are  no 
louj,'er  necessary  to  create  or  transfer  a  fee;  and  as  a  rule 
every  grant  of  lands  will  pass  all  the  estate  or  interest  of  the 
grantor,  unless  a  different  interest  shall  ajijx-ar  by  express 
terms  or  necessary  implication.-^ 

v?  405.  Creation  of  life  estate.  The  authorities  are  not  in 
accord  with  respect  to  the  creation  of  life  estates,  nor  in  the 
construction  to  be  placed  n})on  the  operative  words  of  i>ur- 
chase  or  limitation  employed  in  conveyances.  The  rule  in 
Shelley's  case  is  frequently  resorted  to  as  an  aid  in  construc- 
tion; yet  as  this  rule  do(\s  not  have  a  uniform  operation  in  all 
of  the  states,  and  is  denied  in  a  few,  it  does  not  furnish  a  safe 
guide,  and  being  at  best  but  a  technical  rule  is  never  allowed 
to  control  a  manifest  and  clear  intent.  In  a  majority  of  the 
states  special  statutes  have  been  enacted  with  reference  to  the 
creation  of  estates  and  the  manner  of  their  conveyance;  and 
while  these  statutes  preserve  a  general  resemblance  to  each 
other  and  operate  mainly  in  a  uniform  manner,  yet  slight 
divergences  exist  among  them  all.  and  for  this  reason  the 
reported  cases  are  not  always  reliable  as  rules  unless  the 
particular  statutes  to  which  they  refer  or  which  control  their 
inclination  are  also  known  and  understood. 

P>y  the  i-ule  of  the  common  law  a  grant  to  one  with  no  words 
of  limitation,  that  is  no  words  of  inheritance,  has  the  effect 
of  raising  a  life  estate  in  the  grantee,  but  in  most  of  the  states 
this  rule  has  been  changed  by  statute,  and  now.  in  the  absence 
of  an  express  limitation  for  life,  the  question  is  largely  one 
of  intention  and  judicial  construction.  The  proper  course 
is  to  expressly  limit  the  estate  and  this  may  be  accomplished 
by  a  grant  to  one  *'for  and  during  the  tenu  of  his  life."-^ 
Where  the  grant  is  to  two  or  more  and  it  is  intended  that  the 
estate  shall  cease  on  the  death  of  either,  then  the  estate  should 

cannot  be  properly  a  fee-simple  if  practice  is  to  limit  the  estate  for 

it    is    either    base,    conditional    or  the    natural   life    of    the    grantee, 

qualified.  This  is  a  survival  of  archaic  Eng- 

■-'  Merritt  v.  Disney,  48  Md.  344.  lish    law.      As    we    have   no    civil 

This  is  a  statutory  rule  in  most  death    in   this   country   this    form 

of  the  states.  of  limitation  is  meaningless. 

28  A    common,     but     erroneous, 


480  THE    ESTATE    CONVEYED. 

be  expressly  limited  for  tbeir  joint  lives;  if  it  is  iiiteudi  d  that 
the  estate  shall  continue  to  the  survivor  it  is  well  so  to  limit 
it,  but  words  of  survivorship  are  not  essential  as  a  grant  to 
the  tenants  generally  for  their  lives  would  have  the  same 
effect. 

A  conveyance  of  land  directly  to  a  woman  and  her  childi-en, 
without  other  words,  she  then  having  children,  will  usually 
have  the  effect  to  vest  the  title  in  her  and  her  children 
equally,-'^  such  construction  being  in  strict  accordance  with 
the  rule  of  the  common  law  which  provides  that  where  a 
conveyance  is  made  to  two  or  more,  with  no  specification  of 
the  estate  or  interest  which  each  shall  have,  they  shall  all 
share  equally."^"  It  would  seem,  however,  that  a  very  slight 
indication  of  an  intention  that  the  children  shall  not  take 
jointh^  with  the  mother  will  suffice  to  give  the  estate  to  the 
mother  for  life,  with  remainder  in  fee  to  her  children  ;"^i  and 
even  though  she  may  have  no  children  living,  as  if  she  is 
unmarried,  she  will  yet  take  but  an  estate  for  life,  while  a 
contingent  remainder  will  be  created  in  favor  of  her  children, 
who  when  born  will  take  an  absolute  fee.^^ 

§  406.  The  rule  in  Shelley's  case.  Among  the  early  legal 
abstractions  which  grew  out  of  the  efforts  of  jurists  to  carry 
into  effect  the  general  intent  of  a  grantor  or  testator  by 
annexing  particular  ideas  of  property  to  particular  modes  of 
expression  was  the  adoption  of  the  principle  that,  where  a 
conveyance  is  made  to  a  person  for  life,  remainder  to  his  heirs 
or  the  heirs  of  his  body,  instead  of  giving  him  a  life  estate 
and  a  contingent  remainder  to  the  heirs,  it  vests  a  fee-simple 
or  an  estate-tail  in  the  first  grantee.  This  construction  is  said 
to  have  been  adopted  for  the  purpose  of  saving  to  the  lord  the 
profits  or  perquisites  incident  to  inheritances,  and  also  upon 

29  Hickman  v.  Quinn,  6  Yerg.  -i  Moore  v.  Simmons,  2  Head 
(Tenn.)  96;  Loyless  v.  Blackshear,  (Tenn.)  506;  Blair  v.  Vanblarcum, 
43  Ga.  327;  King  v.  Rea,  56  Ind.  1;  71  HI.  290.  As  where  the  deed  is 
Barber  v.  Harris,  15  Wend.  (N.  Y.)  to  one  and  "the  heirs  of  her  body.' 
615.  Frazer  v.   Supervisors,  74  HI.  282 

30  As  where  a  deed  conveyed  land  ■^■■^  Frazer  v.  Supervisors,  74  HI 
to  A.  as  trustee  for  his  wife  and  282.  The  grantor  in  such  case 
"her  present  heirs;"  held,  that  she  thereby  deprives  himself  of  all  es 
and  the  children  that  she  then  had  tate  but  a  contingent  reversion  de 
were  tenants  in  common.  Chess-  pendent  upon  the  grantee  dying 
Carley  Co.  v.  Purtell,  74  Ga.  467.  without  issue. 


THE    ESTATE    CONVEYED.  481 

the  general  ground  of  preventing  an  abeyance  of  the  fee, 
which  would  ivuder  it  inalienable  during  the  life  of  llir  first 
taker.  The  principle  was  recognized  from  a  very  early  period, 
but  only  became  finally  established  in  a  proceeding  called 
"Shelley's  case;"  and  from  the  notoriety  which  the  case  has 
received  from  i(s  subsetiuent  frecjuent  citation  in  connection 
with  the  application  of  the  rule  therein  laid  down,  it  has 
acquired  a  world-wide  renown  as  "the  rule  in  Shelley's 
case."-'-' 

This  remarkable  rule  has  been  productive  of  an  almost 
incredible  amount  of  controversial  disquisition  and  an  appa- 
rently innnmeiable  number  of  decisions  both  in  England  and 
the  Tnited  Slates;  and,  notwithstanding  the  fact  that  in  this 
country  there  can  be  no  entailed  estates,  strictly  speaking, 
the  rule  still  has  a  modified  force,  and  is  often  resorted  to  as 
a  rule  of  construction,  particularly  in  cases  where  the  ques- 
tions involved  turn  upon  the  point  as  to  whether  the  convey- 
ance which  forms  the  foundation  of  title  passed  only  a  life 
estate  or  a  fee. 

The  rule  as  defined  by  Kent  is  as  follows:  "When  a  person 
takes  an  estate  of  freehold,  legally  or  equitably,  under  a  deed, 
will  or  other  writing,  and  in  the  same  instrument  there  is  a 
limitation  by  way  of  remainder,  either  with  or  without  the 
interposition  of  another  estate,  of  an  interest  of  the  same  legal 
or  equitable  quality,  to  his  heirs  or  heirs  of  his  body,  as  a 
class  of  persons,  to  take  in  succession  from  generation  to 
generation,  the  limitation  to  the  heirs  entitles  the  ancestor  to 
the  whole  estate."^^    Mr.  Preston,  in  his  essay  on  the  rule  in 

33  The   facts   of   this   celebrated  first   son  of   E.   Shelley,   took   by 

case  were  as  follows:    E.  Shelley,  purchase  and   not  by   inheritance, 

tenant  in  tail,  suffered  a  recovery  then   no   other  son   of  E.   Shelley 

and  declared  the  uses  of  it  to  him-  could  ever  take  the  estate,  which 

self  for  life,  without  impeachment  would  disappoint  the  word  "heirs" 

of  waste,   remainder  to  a  trustee  (of  E.  Shelley)    in  the  deed;   and 

for   twenty-four   years,    remainder  that   the    limitation    to    the    heirs 

to  the  heirs  male  of  the  body  of  male  of  the  heirs  male  of  E.  Shel- 

E.  Shelley  and  the  heirs  male  of  ley  did  not  control  the  prior  lim- 

the  body  of  such   heirs  male,   re-  itation,    but    was   merely    declara- 

mainder  over.    Held,  by  the  chan-  tory,   because   every  heir  male  of 

cellor   and   all    the   judges   except  the  heir  male  of  E.  Shelley  was  an 

one,   that  E.    Shelley  took  an   es-  heir  male  of  E.  Shelley  himself.    2 

tate-tail.    The  decision  rested  upon  Hill.  Abridg.  22. 

the  ground  that  if  R.  Shelley,  the  34  4  Kent,  Com.  225.    When  the 

31 


483  THE    ESTATE    CONVEYED. 

i^lielley's  case/'"'  among  several  definitions,  gives  the  following: 
"In  any  instrument,  if  a  freehold  be  limited  to  the  ancestor 
for  life,  and  the  inheritance  to  his  heirs,  either  mediately  or 
immediately,  the  first  taker  takes  the  whole  estate;  if  it  be 
limited  to  the  heirs  of  his  body  he  takes  a  fee-tail  ;^^*'  if  to  his 
heirs,  a  fee-simple."-*'^  The  definition  by  Kent  is  that  which 
is  generally  received  as  an  authoritative  exposition  of  the 
doctrine;  and  as  estates-tail  have  been  generally  abolished  in 
this  country,  the  rule  thus  stated  applies  generally  to  all  cases 
where  there  is  a  grant  of  a  particular  estate  to  the  grantee 
with  remainder  over  to  a  class  of  persons  designated  as  heirs. 
In  such  cases,  under  the  rule,  the  words  "heirs"  or  "heirs  of 
the  body''  are  regarded  as  words  of  limitation  and  not  of 
purchase.^^  In  some  states,  however,  while  estates-tail  as 
they  existed  under  the  old  law  have  been  abolished,  yet  the 
statute  has  saved  the  entail  to  the  first  degree,  thus  giving  a 
life  estate  to  the  first  taker  and  vesting  in  the  second  taker 
a  remainder  in  fee.  In  those  states,  therefore,  when  the 
remainder  is  to  the  "heirs  of  the  body"  the  estate  thus  con- 
ferred is  in  the  nature  of,  if  not  an  estate-tail,  to  which  the 
rule  in  Shelley's  case  does  not  apply.  The  words  of  heirship 
and  procreation,  in  such  event,  will  be  regarded  as  words  of 
purchase  and  not  of  limitation,  and  the  first  taker  will  take 

rule  applies  the  ancestor  has  the  Com.  115.  This  point  becomes  im- 
power  of  annihilation,  for  he  has  portant  in  this  connection  where, 
the  inheritance  in  him;  and  when  as  in  some  estates,  the  entail  is 
it  does  not  apply  the  children  or  saved  to  the  first  degree.  See  But- 
other  relations,  under  the  denom-  ler  v.  Huestis,  68  111.  594. 
ination  of  heirs,  have  an  original  37  i  Prest.  Estates,  263. 
title  in  their  own  right  and  as  pur-  3s  See.  Bradford  v.  Howell,  42 
chasers  by  that  name.  The  policy  Ala.  422;  Forrest  v.  Jackson,  56 
of  the  rule  was  that  no  person  N.  H.  357;  Smith  v.  Block,  29  Ohio 
should  be  permitted  to  raise  in  an-  St.  488;  King  v.  Rea,  56  Ind.  1; 
other  an  estate  of  inheritance  and  Butler  v.  Huestis,  68  111.  594 ;  Baker 
at  the  same  time  make  the  heirs  v.  Scott,  62  111.  86.  Thus,  a  deed 
of  that  person  purchasers.  4  Kent,  which  "conveys  and  warrants"  cer- 
Com.  216.  tain  real  estate  to  the  grantee  "dur- 
35  1  Prest.  Est.  263.  ing  her  life,  in  remainder  to  the 
3<i  An  estate-tail  is  where  lands  issue  of  her  body,  their  heirs  and 
are  given  to  one  and  the  heirs  of  assigns  forever,"  falls  within  the 
his  body  begotten.  Both  the  words  rule  in  Shelley's  case,  and  vests 
of  inheritance  and  words  of  in  such  grantee  the  title  to  such 
procreation  must  appear.    2  Black,  real  estate  in  fee-simple,  the  words 


THE    ESTATE    CONVEYED.  483 

only  a  life  estate,  while  the  heirs  of  his  body  will  take  the 
remainder  in  fee.^^ 

With  respect  to  the  effect  of  this  rule  the  authorities  differ. 
Thus,  in  some  instances  it  is  held  that  the  rule  is  not  one  of 
construction,  but  an  inexorable  rule  of  law,  that  where  the 
ancestor  takes  a  preceding  freehold  a  remainder  shall  not  be 
limited  to  his  heirs  as  purchasers.^^  On  the  other  hand,  it  is 
held  in  well-considered  cases  that  the  rule,  at  most,  is  only 
a  technical  rule  of  construction,  and  must  give  way  to  the 
clear  intention  of  the  donor,  when  that  intention  can  be  ascer- 
tained from  the  instrument  in  which  the  words  supposed  to 
be  words  of  limitation  are  used.^^  This  is  the  view  now 
generally  taken. 

§  407.  Creation  of  co-tenancies.  Th.e  statute  now  generally 
detines  the  character  of  the  estate  taken  under  a  deed  or 
devise  to  a  number  and  usuall}-  fixes  tho  same  as  a  tenancy 
in  common  unless  it  is  expressly  provided  otherwise,  by  proper 
words  of  limitation,  in  the  instrument  of  conveyance.  This  is 
a  complete  reversal  of  the  old  rule  of  the  common  law.  with 
which  joint  tenancy  seems  to  have  been  a  favorite,  for  by  that 
rule  no  special  words  of  limitation  were  necessary  to  create 
the  estate  while  words  or  circumstances  of  negation  were 
necessarj'  to  avoid  it.  At  present,  however,  when  it  is  intended 
that  parties  shall  take  as  joint  tenants  the  fact  must  be  clearly 
and  sufficiently  stated  by  the  use  of  apt  words.  This  may  be 
accomj)lished  beyond  question  by  a  succinct  statement  that 
the  estate  is  to  be  held  "in  joint  tenancy  and  not  in  common," 
but  usually  a  conveyance  to  several  persons  "jointly."  without 
any  expressions  indicating  that  it  shall  be  divided  among 
them,  will  have  the  effect  of  vesting  an  estate  in  joint 
tenancy.^-  No  words  of  limitation  are  necessary  to  create  an 
estate  in  common. 

i$  408.  Future  estates.  Broadly  stated,  no  estate  in  real 
pro[)erty  can  be  bargained,  sold  or  released  before  it  is 
acquired  by  the  grantor.  A  mere  expectation  or  belief  that  a 
party  will  at  some  future  time  acquire  an  interest  in  certain 

"issue   of  her   body"  being  words  Ind.    251;    Ware   v.   Richardson.   3 

not  of  purchase  but  simply  of  lim-  Md.  505;  Cooper  v.  Cooper,  6  R.  I. 

itation.     King  v.  Rea.  50  Ind.  1.  261. 

•If  Butler  V.  Huestis.  68  111.  594.  4i  Belslay  v.  Engel.  107  111.  182. 

40  See  Ridgeway  v.  Lamphear,  99  i-  Case  v.  Owen,  139  Ind.  22. 


484  THE    ESTATE    CONVEYED. 

propertj^  is  not  in  itself  an  estate  or  interest  of  any  kind,  and 
cannot  be  conveyed  by  deed.'*^  But  where  lands  are  conveyed 
by  deed  of  bargain  and  sale  simply,  which  ordinarily  operates 
only  to  transfer  vested  estates  and  interests,  if  it  distinctly 
appears  on  the  face  of  the  deed  that  it  was  intended  to  trans- 
fer any  future  interest  which  the  grantor  might  acquire, 
equity  will  treat  the  deed  as  an  executory  agreement  to 
convey,  and  compel  the  grantor  to  convey  the  subsequently- 
acquired  interest.'*^ 

Where  the  grantor  actually  possesses  a  full  estate  in  land 
he  may,  as  a  rule,  carve  out  of  it  an  estate  to  commence  in 
futuro.  At  common  law  an  attempt  to  create  or  convey  a 
freehold  or  estate  of  inheritance  in  futuro  was  a  nullity,  the 
nearest  approach  being  a  covenant  to  stand  seized  to  uses; 
and  this  was  only  permissible  w^hen  the  consideration  was 
blood  or  marriage.^^  But  under  the  statutes  now  in  force  in 
a  majority  of  the  states  the  owner  of  land  may  convey,  in 
the  manner  prescribed,  any  part  or  portion  of  his  estate,  as 
he  and  his  grantee  may  agree,  subject  only  to  those  restric- 
tions which  the  law  imposes,  as  required  by  public  policy,  but 
relieved  from  the  technical  doctrines  which  arose  out  of 
ancient  feudal  tenures,  and  all  the  restrictive  effect  which 
they  had  upon  alienation.  Hence,  it  has  frequently  been  held 
that  a  conveyance  of  real  estate  to  take  effect  in  futuro  is 
good  and  valid  without  the  creation  of  any  intermediate  estate 
to  support  it.^^ 

43  Lamb  v.  Kamm,  1  Sawyer  (C.  gain  and  sale;  and,  under  the  stat- 
Ct.)   238.  ute  of  uses,  the  use  is  executed  and 

44  Hannon  v.  Christopher,  34  N.  the  title  passes  to  the  grantee  on 
J.  Eq.  459.  delivery  of  the  deed.    And  holding 

45  Jackson  v.  McKenny,  3  Wend,  the  fee,  the  law  holds  he  is  seized 
(N.  Y.)  233;  Brewster  v.  Hardy,  22  not  only  of  the  title,  but  of  the 
Pick.  (Mass.)  380;  Spaulding  v.  possession,  as  the  fee  draws  to  it 
Gregg,  4  Ga.  81;  2  Black.  Com.  338;  possession  in  law.  .  .  .  By  giv- 
4  Kent,  Com.  234.  Ing  effect  to  such  conveyances  we 

40  In  Shackelton  v.  Sebree,  86  111.  only  estop  the  grantor  by  his  cove- 

616,  the  conveyance  was  not  to  be  nants,    and    hold    that   he    stands 

recorded   or   take  effect  until  the  seized   to  the  use   of  the   grantee 

death  of  the  grantor.     Walter,  J.,  as  in  other  deeds  of  bargain  and 

said:     "Our  statute  has  abolished  sale.    We  give  effect  to  the  statute 

livery  of  seizin,  and  deeds  of  feoff-  of  uses.     We  carry  into  effect  the 

ment  have   gone   out  of  use,   and  intention   of  the   parties,   and   we 

lands  are  conveyed  by  deed  of  bar-  fail  to  see  that  it  can  work  injury 


THE    ESTATE    CONVEYED.  ISo 

It  must  bo  understood,  liowevcr,  that  while  it  is  competent 
for  a  grantor  to  convey  an  estate  to  commence  in  fuiuro 
witliout  any  inteiinediaff'  estate  to  suppoi't  it,  it  is  necessary, 
nevertheless,  that  the  deed  should  have  delivered  equally  as 
in  case  of  present  jjrant;  and  while  the  title  may  not  actually 
vest  until  the  death  of  the  j^raiitor,  delivery  is  essential  to 
make  the  deed  ellective,  and  this  delivery  must  be  in  the 
grantor's  life-time — that  is,  there  must  be  an  actual  or  con- 
structive delivery  during,'  the  life  of  the  grantor,  or  a  delivery 
after  his  death  which  takes  elfect  by  relation  at  some  period 
during  his  life.  Thus,  a  delivery  after  death  may  be  made  by 
some  person  holding  the  deed  as  a  trustee,  or  having  the  same 
in  possession  as  an  escrow.  A  deed  will  not  usually  be  per 
mitted  to  perfonn  the  office  of  a  will,  and  if  there  is  no  delivery 
during  life  there  can  be  none  after  death.^^ 

§409.  Perpetuities.  It  cannot  be  said  to  be  other  than  a 
natural  desire  on  the  part  of  a  land-owner — one,  indeed,  that 
seems  to  be  inherent  in  human  nature — to  continue  his  acqui- 
sitions in  his  own  family  as  long  as  possible,  and  to  erect  what 
in  law  is  termed  a  perpetuity.  It  has  long  been  settled  in 
England  that  real  property  may  be  rendered  inalienable  dur- 
ing the  existence  of  a  life  or  lives  in  being  and  twenty-one 
years  thereafter;  or,  in  case  of  a  posthumous  child,  a  few 
months  more,  allowing  for  the  term  of  gestation.  Originally 
only  one  life  in  being  was  permitted,  but  from  one  life  the 
courts  gradually  proceeded  to  several  lives  in  being  at  the 
same  time,  on  the  principle  that  this  in  fact  only  amounted 
to  the  life  of  the  survivor.  Any  limitation  tending  to  extend 
the  estate  beyond  this  period  is  termed  a  perpetuity,  and  the 
limitation  is  void. 

to  any  one."  In  Abbott  v.  Halway,  some  sort  pass  immediately  to  the 
72  Me.  298,  Barrows,  J.,  says:  "The  grantee  in  opposition  to  the  ex- 
mere  technicalities  of  ancient  law  pressed  intention  of  the  parties, 
are  dispensed  with  upon  compli-  The  feoffment  is  to  be  regarded 
ance  with  statute  requirements,  as  taking  place  and  the  livery  of 
The  acknowledgment  and  record-  seizin  as  occurring  at  the  time 
ing  are  accepted  in  place  of  livery  fixed  in  the  instrument;  and  the 
of  seizin,  and  it  is  competent  to  fix  acknowledgment  and  recording  are 
such  time  in  the  future  as  the  par-  to  be  considered  as  giving  the 
ties  may  agree  upon  as  the  time  necessary  publicity  which  was 
when  the  estate  of  the  grantee  sought  in  the  ancient  ceremony." 
shall  commence.  No  more  neces-  And  see  Kent  v.  Atlantic  De  Laine 
sity  for  limiting  one  estate  upon  Co.,  8  R.  I.  305. 
another,  or  for  having  an  estate  of       *'•  Huey  v.  Huey,  65  Mo.  689. 


48G  THE   ESTATE   CONVEYED. 

Except  as  altered  or  abrogated  by  legislation  this  rule  has 
practically  been  adopted  in  the  United  States,  and  forms  the 
basis  of  methods  of  construction  of  deeds  and  testamentary 
grants.**^  By  statute,  in  some  states,  the  absolute  power  of 
alienation  cannot  be  suspended  by  any  limitation  or  condition 
whatever  for  a  longer  period  than  during  the  continuance  of 
two  lives  in  being  at  the  creation  of  the  estaite,-*'^  while  a 
manifest  tendency  has  been  generally  exhibited  by  the  courts 
to  abridge  rather  than  to  enlarge  the  period  of  inalienability 
as  being  better  suited  to  the  nature  of  our  institutions  as  a 
free  as  well  as  a  commercial  people.^*^  The  effect  of  such 
statutes,  therefore,  has  been  to  reduce  the  scope  of  the  com- 
mon-law rule  with  reference  to  lives  by  allowing  but  two 
instead  of  an  indefinite  number,  and  to  abolish  altogether  the 
absolute  term  of  twenty-one  years,  and  to  allow  in  its  stead 
an  actual  minority.  A  remainder  in  fee,  to  take  effect  after 
the  expiration  of  two  lives  in  being,  may  be  created  in  favor 
of  a  person  not  in  being  at  the  time;  and,  it  seems,  in  such 
case,  a  further  contingent  remainder  in  favor  of  a  person  not 
in  being  at  the  creation  of  the  estate  may  be  limited  to  take 
effect  in  the  event  that  the  person  to  whom  the  remainder  is 
first  limited  shall  die  under  the  age  of  twenty-one  years.^""'!  So 
that,  even  under  statutes  similar  to  those  now  under  consider- 
ation, the  power  of  alienation  may  lawfully  be  suspended  for 
the  term  of  a  minority,  after  the  expiration  of  two  lives  in 
being,  by  means  of  a  contingent  remainder,  to  take  effect  in 
the  event  of  the  death  of  the  first  remainder-man  in  fee  during 
his  minority.-''- 

§  410.  Entailments.  At  common  law  a  conveyance  to  a 
person  and  the  heirs  of  his  body,  whether  generally  or  spe- 
cially^ created  a  conditional  fee,  which  was  held  to  be 
performed  and  the  fee  vested  upon  birth  of  issue.  It  was 
also  held  that  there  was  an  implied  condition  that  if  the  donee 
should  die  without  such  heirs  the  land  should  revert  to  the 

•48  See  Loring  v.  Blake,  98  Mass.  utes,  but  has  since  been  re-enacted 

253;    Wood    v.    Griffin,    46    N.    H.  in  other  states  which  have  followed 

234;    Donohue  v.  McNichol,  61  Pa.  in  the  New  York  lead. 

St.  73.  ■■^"  Coster  v.  Lorillard,  14  Wend. 

48  This  was  first  enacted  in  New  (N.  Y.)  265. 

York    with     the     other    sweeping  ''i  Manice  v.  Manice,  43  N.  Y.  303. 

changes  made  by  the  Revised  Stat-  ■'-  Manice  v.  Manice,  43  N.  Y.  303. 


THE    ESTATE    CONVEYED.  487 

donor.^"^  After  issue  born  the  conditional  estate  became  abso- 
lute, and  the  j^rantee  mij^ht  alien  the  laud  so  as  to  bar  his  own 
issue  and  the  donor.  If  after  such  performance  of  the  condi- 
tion the  j!;rantee  did  not  alien  the  land,  and  the  heir  died, 
then  upon  the  death  of  Hut  grantee  the  estate  reverted  to  the 
donor,  to  obviate  which  it  was  customary  for  the  grantee  on 
the  birth  of  issue  to  alien  and  then  repurchase,  so  that  he 
might  become  vested  with  a  fee-simple  absolute  that  would 
descend  to  his  heirs  generally.  This  was  the  state  of  the  law 
at  the  time  of  the  adoi)tion  of  the  statute  de  donis  condition- 
alibiis,  ^^  the  effect  of  which  was  to  prevent  the  grantee  from 
aliening  the  land  after  birth  of  issue,  so  as  to  cat  off  or  bar 
this  estate,  which  descended  in  like  manner  from  generation 
to  generation  to  the  class  of  heirs  described  in  the  deed  to  the 
first  donee.  The  interest  created  by  the  operation  of  the 
statute  finally  came  to  be  regarded  as  a  new  species  of  estate 
to  which  the  conveyancers  gave  the  name  fee-tail. 

The  spirit  of  the  law  in  the  western  hemisphere  is  and  ever 
has  been  opposed  to  the  tying  up  of  titles  in  perpetuity  by 
entails;  and  in  every  state  statutory  modifications  of  the  com- 
mon law  exist,  designed  as  well  for  the  protection  of  the  rever- 
sion as  for  the  remainder's  designated  in  the  deed,  and  at  the 
same  time  limiting  the  entail.  By  these  laws  a  most  reasona- 
ble middle  course  has  been  adopted,  equally  removed  from 
the  injustice  of  the  old  common  law  or  the  mischievous  ten- 
dency of  the  statute  de  donis.  Under  these  statutes  the  heir 
at  birth  takes  an  absolute  estate  in  fee,  while  the  donee  takes 
a  life  estate  ait  the  delivery  of  the  deed,  the  fee  practically 
remaining  in  abeyance,  if  there  be  no  heir,  until  birth  of  issue. 
In  this  respect  there  is  an  important  departure  from  some  of 
the  old  canons  of  the  law;  yet  the  authorities  seem  to  be 
united  in  declaring  that  under  these  statutes  t\w.  estate  in  fee 

03  This  was  a  condition  annexed  to  the  donor  if  the  donee  had  no 

to  all  grants  by  operation  of  law,  heirs  of  his  body;   but  if  he  had, 

that,  on  failure  of  the  heir  specified  that  it  should  remain  to  the  gran- 

in  the  grant,  the  grant  should  be  tee.     Hence   it  was   called   a   fee- 

at  an  end  and  the  land  return  to  simple  on   condition   that  he   had 

the  ancient  proprietor.    2  Bl.  Com.  issue;  and  when  the  condition  was 

110.       The    condition    annexed    to  performed  by   the  birth   of   issue, 

these  fees  by  the  common  law  was  the   estate  in  the  grantee  became 

held,  where  it  was  to  a  man  and  absolute  and  unconditional, 
the  heirs  of  his  body,  to  be  a  gift        ^*  13  Edw.  I.  ch.  1. 
on  condition  that  it  should  revert 


488  THE    ESTATE    CONVEYED. 

ma}'  be  iu  abeyance  with  uo  particular  estate  to  support  the 
remainder,  nor  any  person  in  being  to  take  the  inheritance 
until  he  comes  into  being  so  that  it  can  vest.^^ 

The  estate  thus  created  cannot  be  defeated  by  the  life  ten- 
ant before  issue  born  by  alienation  to  a  stranger  or  by  a 
reconveyance  to  the  grantor.^^^ 

§411.  Homesteads.  The  general  nature  and  characteris- 
tics of  homestead  estates  having  already  been  alluded  to  will 
not  receive  further  consideration  in  this  paragraph. 

As  a  rule  no  operative  words  are  necessary  to  create  a  home- 
stead; and,  as  this  is  a  matter  which  lies  largely  in  intention, 
extraneous  circumstances  are  of  more  importance  than  the 
particular  form  of  conveyance. 

The  right  of  homestead  will  exist  and  attach  to  almost  any 
kind  of  title  or  interest.  It  has  never  been  considered  neces- 
sary that  the  land  should  be  held  by  an  absolute  fee-simple; 
and,  generally,  any  estate  that  is  vendible  under  an  execution 
will  support  the  homestead  exemption.^'^  It  has  been  held  to 
apply  to  an  estate  for  life^^  as  well  as  to  an  estate  for  years,^'-* 
and  where  the  claimant  is  the  owner  and  in  possession  it  is 
immaterial  in  what  manner  title  may  have  been  derived.*^^ 

The  primary  design  of  the  homestead  laws  being  to  furnish 
a  place  of  refuge  for  the  famil}',  it  is  wisely  provided  that  the 
husband  can  do  no  act  that  will  interfere  with  the  occupancy 
and  use  of  the  homestead  without  the  consent  of  the  wife, 
manifested  by  a  participation  in  the  act  of  conveyance;  and 
courts,  in  the  construction  of  this  inhibition,  have  in  some 
cases  gone  to  great  lengths  in  declaring  the  purport  of  the 
law^  Not  only  does  this  apply  to  alienations  of  the  fee,  but 
to  any  lesser  estate  than  can  be  carved  out  of  the  feef^  and  it 
has  been  held  that  even  the  alienation  or  grant  of  an  ease- 
ment is  void  as  against  the  rights  of  the  wife  unless  assented 

ns  Frazer  v.  Supervisors,  etc.  74  •'''7  Pilcher  v.  R.  R.  Co.38  Kan.  516. 
111.  282.    The  statutes  on  this  sub-        ""^  Deere  v.  Chapman,  25  111.  610; 

ject  are  not  uniform  and  the  doc-  Robinson  v.  Smithey,  80  Ky.  636. 
trine  of  the  text  is  denied  in  some        •''•»  Patton   v.    Deberard,    13    Iowa 

states.     Nor  can  the  doctrine  that  53;  Johnson  v.  Richardson,  33  Miss, 

the  fee  may  be  in  abeyance  be  con-  462. 
sidered  sound.  co  Robinson    v.    Smithy,    80    Ky. 

•"'0  Frazer  v.  Supervisors,  etc.  74  636. 
111.  282.  ci  In    Coughlin    v.    Coughlin,    26 


THE    ESTATE    CONVEYED. 


489 


(to  hy  bor.'^-  To  this  rule  llicrc  soems  to  be  hut  one  recognized 
exception,  and  thai  is  where  Ihe  wife  heiself  becomes  the 
grantee  of  the  fee  b_v  tlie  (■(jnv(\\ ance  of  the  hiisl);ind;  in  this 
hitter  case  a  deed  signed  l)V  tlie  liusliand  ah)ne  will  lie  valid,"'' 
though  it  would  seem  that  in  some  states  this  exception  is 
denied. 

i;  412.  Incidents  to  the  grant  as  connected  with  use  in- 
tended. It  is  one  of  the  oldest  and  best-settled  ]»rincii)les  of 
hiw  that,  where  anything  is  granted,  all  the  means  to  attain  it 
and  all  the  fruits  and  ellects  of  it  are  granted  also  by  legal 
implication,  and  will  pass  inclusive,  together  with  the  thing, 
by  the  grant  of  the  thing  itself.''**  So,  also,  while  a  mere  con- 
veyance of  part  of  a  tract  of  land  may  not  give  the  grantee  the 
right  to  make  any  use  of  the  part  granted  which  will  injur- 
iously affect  the  remaining  portion,  yet,  when  the  grant  is 
expressed  to  be  for  a  particular  use,  neither  the  grantor  nor 
one  claiming  under  him  can  object  to  such  use  or  recover  dam- 
ages resulting  therefrom,"^^ 

of  constructing  a  railroad  and  for 
all  purposes  connected  with  the 
construction  and  use  of  said  rail- 
road," the  right  of  way  for  the 
same,  one  hundred  feet  wide, 
through  the  lot  and  other  property, 
"to  have,  hold  and  enjoy  the  land 


Kan.  116,  the  court  held  that  "the 
husband  cannot,  without  the  con- 
sent of  the  wife,  execute  a  lease  of 
a  homestead,  and  give  possession 
thereof  to  a  tenant."  In  this  case 
the  lease  was  executed  for  five 
years,  but  in  a  later  case  it  is  inti- 
mated that  the  length  of  the  term    described,  with  the  appurtenances. 


of  the  lease  can  make  no  difference. 
See  Pilcher  v.  R.  R.  Co.  38  Kan. 
516. 

o:i  Pilcher  v.  R.  R.  Co.  38  Kan. 
516;  but  see  Chicago,  etc.  R.  R. 
Co.  V.  Swinney,  38  Iowa  182. 

«•■!  Burkett  v.  Burkett,  78  Cal. 
310;  Harsh  v.  Griffin,  72  Iowa  608; 
Riehl  v.  Bingenheimer,  28  Wis.  84. 

«<  Aiken  v.  Boardman,  2  Met. 
(Mass.)  457;  Fitch  v.  Johnson,  104 
111.  Ill;  C.  R.  I.  &  P.  R'y  Co.  v. 
Smith,  111  111.  363. 

6''  As  where  the  owner  of  a 
twenty-acre  lot,  being  desirous  of 
the  construction  of  a  railroad  over 


unto  the  said"  grantee,  "and  its 
assigns,  forever,  for  all  uses  and 
purposes,  or  in  any  way  connected 
with  the  construction,  preserva- 
tion, occupation  and  enjoyment  of 
said  railroad,"  with  a  proviso  for 
a  reversion  in  case  the  same  should 
cease  to  be  used  for  railroad  pur- 
poses. Held,  that  as  the  casting 
of  smoke,  cinders,  ashes,  sparks  of 
fire  and  the  shaking  of  the  soil 
upon  other  parts  of  the  lot  was  a 
necessary  incident  of  the  railroad, 
and  inseparable  from  the  running 
of  trains  thereon,  the  right  to  do 
these   acts   passed   to   the   grantee 


the  same,  made  a  deed  to  the  rail-  and  its  successors  by  necessary  im- 

road   company,    reciting   that,    "in  plication  from  the   express  grant, 

consideration  of  the  premises  and  C,  R.  I.  &  P.  R'y  Co.  v.  Smith,  111 

$60."  he  granted,  "for  the  purpose  111.  363. 


CHAPTER  XVi. 

THE    COVENANTS. 

§  413.  General  observations.  §  425.     Covenant   for   quiet   enjoy- 

414.  Creation  of  covenants.  ment. 

415.  Rules  of  Construction.  426.     Covenant     against     incum- 

416.  Inuring  of  title.  brances. 

417.  What     covenants     a     pur-  427.    Further  assurance. 

chaser  has  a  right  to  ex-       428.     Covenant  of  non-claim, 
pect.  429.     Covenant  of  warranty. 

418.  Contract     for     conveyance       430.     Extinguishment       of       the 

with  "usual  covenants."  covenant. 

419.  Contract    to    convey    with       431.     Cancellation  of  correspond- 

warranty.  ing  covenants. 

420.  Covenants  limited  to  estate       432.     Implied  covenants. 

actually  conveyed.  433.     Statutory  deeds. 

421.  Covenants     running     with       434.     Where  wife  refuses  to  join. 

the  land.  435.     Value  of  covenants. 

422.  Effect  and  extent  of  restric-       436.     Defective    covenants — Oper- 

tions.  ation  and  effect. 

423.  Conveyances  by  attorney.  437.     Quitclaims. 

424.  Covenant  of  seizin. 

§  413.  General  observations.  Covenants  inserted  in  deeds 
are  in  the  nature  of  collateral  promises  of  the  performance 
or  non-performance  of  certain  acts,  or,  of  agreements  that  a 
given  state  of  things  does  or  shall  or  does  not  or  shall  not 
exisit.  When  relating  to  title  they  are  inserted  for  the  pur- 
pose of  securing  to  the  grantee  the  benefit  of  the  title  which 
the  grantor  professes  to  convey,  and  as  an  indemnity  against 
any  loss  that  may  arise  in  consequence  of  any  impairment  or 
defect  of  same.  They  are  said  to  be  implied,  as  where  they 
are  raised  by  intendment  of  law  from  the  use  of  certain  words, 
and  express,  as  where  the  promise  or  agreement  is  set  forth  in 
explicit  language  declaring  the  intention  of  the  parties. 

The  whole  doctrine  of  covenants  grew  out  of  the  ancient 
doctrine  of  warranty,  which  originally  was  an  implication  of 
the  feudal  law  binding  the  lord  to  recompense  his  tenant, 
when  evicted  from  his  feud,  with  another  of  equal  value. 
The  term  warranty,  however,  as  it  is  used  in  connection  with 
covenants  of  title  in  this  country,  has  but  little  affinity  with 
the  ancient  remedy,  and  while  the  name  has  been  retained 

490 


THE    COVENANTS.  491 

the  present  prevailinfj  doctrine  seems  to  be  essentially  Ameri- 
eau  bolh  in  jtrinciple  an<l  practice.  "There  is  no  evidence," 
says  Mr.  Rawie,  "that  the  covenant  in  such  general  use  in 
this  country,  called  'the  covenant  of  wai-ranty,'  «'ver  had  a 
place  in  Enj^lish  conveyancing."' 

The  general  use  of  covenants  for  title  seems  to  have  come 
into  vofjue  somewhere  toward  the  close  of  the  seventeenth 
century,  superseding  the  ancient  feudal  warranty;  yet  just 
how  they  came  to  be  introduced,  or  how  they  originated,  are 
matters  which  legal  historians  are  unable  to  determine,  and 
the  accounts  which  have  come  down  to  us  amount  to  little  or 
nothing  more  than  mere  conjectures.^  The  early  covenants 
were  expressed  in  short  and  simple  forms,  and  it  was  not  until 
about  the  time  of  the  restoration  of  Charles  II.  that  they  com- 
menced to  assume  the  shape  by  which  they  have  since  been 
known. 

§  414.  Creation  of  covenants.  It  is  fundamental  that  no 
particular  form,  or  expression,  or  arrangement  of  words  is 
necessary  to  create  or  raise  covenants,^  and  that  any  language 
showing  intention  and  manifesting  a  promise  is  sufficient  for 
the  purpose.^  The  artificial  rules  of  conveyancing  have  pre- 
scribed forms,  and  the  law  has  given  specific  and  well-defined 
meanings  to  certain  words  employed  therein;   but  the  liberal 

1  Rawle,  Govts.  §  13.  a   warranty,    in   its   proper    sense, 

2  Mr.  Rawle  suggests  the  follow-  would  have  been  just  as  inappropri- 
ing  as  a  possible  history  of  their  ate  as  would  have  been  a  personal 
origin:  "So  long  as  livery  of  seizin  covenant  in  a  deed  of  feoffment, 
was  necessary  to  the  validity  of  the  while  the  covenant  was  eminently 
transfer  of  land,  so  long  did  war-  fitting.  And  hence  it  may  be  that 
ranty,  which  was  essentially  a  cove-  we  find,  all  through  the  reports  of 
nant  real,  accompany  the  deed  of  the  time  of  Elizabeth,  cases  in 
feoffment.  A  personal  covenant  which  some  of  the  covenants  for 
would  have  been  an  inappropriate  title — generally  a  covenant  for 
element  of  such  a  form  of  convey-  seizin  or  of  good  right  to  convey — 
ance.  But  the  passage  of  the  stat-  are  used  in  conveyances  taking  ef- 
ute  of  uses  toward  the  latter  part  feet  by  virtue  of  the  statute  of 
of  the  reign  of  Henry  VIH.  intro-  uses."  Rawle,  Govts.  §  13. 

duced  the  conveyances  familiar  at  •'  Jackson  v.  Swart,  20  Johns.  (N. 

the    present    day,    which,    taking  Y.)  85;  Bull  v.  Follett,  5  Gow.  (N. 

their     effect     under     the     statute,  Y.)  170. 

passed  the  freehold  without  livery  ■«  Taylor   v.   Preston,   79   Pa.   St. 

of  seizin;    and   in   a   deed    of   bar-  436;  Hallet  v.  Wylie,  3  Johns.   (N. 

gain  and  sale,  or  lease  and  release,  Y.)  44. 


492  THE    COVENANTS. 

construction  always  accordt'd  to  stipulations  of  this  character 
permits  the  obvious  intention  of  the  parties  to  have  effect 
regardless  of  the  form  or  phraseology.^ 

§  415.  Rules  of  construction.  Covenants  are  to  be  con- 
strued according  to  tlieir  spirit  and  intent;^  they  should  be 
considered  in  connection  with  the  context,  and  must  be  per- 
formed according  to  the  intention  of  the  parties  as  derived 
from  both."  General  covenants  may  be  restricted  by  special 
covenants;^  but  the  general  rule  is  that  all  of  the  covenants 
are  to  be  construed,  as  nearly  as  possible,  according  to  the 
obvious  intention  of  the  parties,  which  must  be  gathered  from 
the  language  of  the  whole  instrument,  interpreted  according 
to  the  reasonable  sense  of  words.^  In  case  of  doubt  they 
should  be  construed  most  strongly  against  the  covenantor  and 
in  favor  of  the  covenantee  ;io  but  this  is  permitted  only  as  a 
last  resort,  and  when  the  clause  is  equally  open  to  two  or  more 
Inconsistent  interpretations. 

§416.  Inuring  of  title.  By  the  common  law%  if  a  grantor 
who  has  no  interest  or  only  a  defeasible  interest  in  the  prem- 
ises granted  conveys  the  same  with  warranty,  and  afterwards 
obtains  an  absolute  title  to  the  property,  such  title  immedi- 
ately becomes  vested  in  the  grantee  or  his  heirs  or  assigns  by 
operation  of  the  principle  of  estoppel  ;ii  and  if  the  grantor  or 
any  one  claiming  title  from  him  subsequent  to  such  grant 
seeks  to  recover  the  premises  by  virtue  of  such  after-acquired 
title,  the  original  grantee  or  his  heirs  or  assigns,  by  virtue  of 
the  warranty  which  runs  with  the  title  to  the  land,  may  plead 

•'"'  Johnson  v.  Hollensworth,  48  nanted  generally  that  he  was 
Mich.  140;  Wadlington  v.  Hill,  18  seized,  etc.,  being  the  usual  gen- 
Miss.  560.  eral  covenants  with  warranty,  held, 

6  Ludlow  V.  McCrea,  1  Wend.  (N.  that  the  general  covenants  in  the 

Y.)   328;   Schoenberger  v.  Hoy,  40  deed  were  restricted  by  the  special 

Pa.  St.  132.  covenant  as  to  the  quantity  of  land. 

T  Marvin  V.  Stone,  2  Cow.  (N.  Y.)  Whallon    v.    Kauffman,    19    Johns. 

781;    Wadlington  v.  Hill,  18  Miss.  (N.  Y.)  97. 

560.  » Wadlington    v.    Hill,    18    Miss. 

8  As     where     defendant,     after  560;   Schoenberger  v.  Hoy,  40  Pa. 

granting  a  tract  of  land  described  St.  132;    Marvin  v.   Stone,  2  Cow. 

by  metes  and  bounds,  added,  "con-  (N.  Y.)  781. 

taining  six  hundred  acres,  and  the  if  Randel    v.    Canal    Co.    1    Har. 

same    is    hereby    covenanted    and  (Del.)  154. 

warranted  to  contain  at  least  five  n  Grand  Tower,  etc.  Co.  v.  Gill, 

hundred    acres,"    and    then    cove-  111  111.  541;  Lowry  v.  Williams,  13 


THE   COVENANTS.  403 

such  warranty  by  way  of  rebut icr  or  i-sloitpcl  a.s  an  absolute 
bar  to  the  claim.' - 

This  priiuijilc  lias  been  applied  to  all  suits,  brought  by  per- 
sons bound  by  tlio  warranty  or  estoppel,  afi;ainst  the  grantee  or 
his  heirs  or  assigns,  so  as  to  give  to  the  grantee  and  those 
clainnug  under  hiui  the  same  right  to  the  premises  as  if  the 
subse(iuently  aecjuired  title  or  interest  therein  had  been 
actually  vested  in  the  grantor  at  the  time  of  the  original  con- 
veyance from  him. 

The  obligation  created  by  the  estoppel  binds  not  only  the 
party  making  the  covenant,  but  all  persons  j)rivy  to  him, 
whether  of  blood,  law  or  estate;  his  legal  representatives,  his 
heirs,  and  all  who  take  his  estate  by  contract  stand  in  his 
stead,  and  are  subject  to  all  the  consequences  which  accrue  to 
him.  It  adheres  to  the  land,  is  transmitted  with  the  estate, 
and  becomes  a  muniment  of  title,  so  that  all  who  would  after- 
wards acquire  it  shall  be  bound  by  or  may  take  advantage  of 
the  rights  which  the  existence  of  the  fact  imposes  upon  it.^^ 

The  rule  that  where  a  deed  conveys  a  greater  interest  than 
the  grantor  at  the  time  possesses,  an  after-acquired  title 
inures  to  the  benefit  of  his  grantee,  is  subject  to  an  excep- 
tion, however,  where  such  grantor  executes  to  his  grantor  a 
mortgage  to  secure  a  part  of  the  ])urchase  money  on  the  prem- 
ises subsequently  conveyed  by  the  latter  to  the  former.'^ 

§  417.  What  covenants  a  purchaser  has  a  right  to  expect. 
It  would  seem  to  be  a  well-settled  rule  in  England  that  a  pur- 
chaser has  no  right  to  demand  from  his  vendor  covenants  of 
a  greater  scope  than  against  his  ow'n  acts,  and  this  doctrine 
seems  to  have  found  recognition  in  some  of  the  states  of  the 
American  Union.  The  reason  of  the  English  rule  would  seem 
to  be  that  a  man  is  presumed  to  sell  an  estate  as  he  receives 
it,  while  the  ])Ui(haser  is  presumed  to  have  made  all  the  nec- 

Me.  181;  Wark  v.  Willard,  13  N.  H.  '•  As  where  A.  executed  a  deed 

389;  Tefft  v.  Munson,  57  N.  Y.  99;  of  conveyance  of  lauds  to  which  he 

McCusker  v.  McEvey,  9  R.  I.  533.  had  no  title  to  B.,  and  A.  afterward 

1-  Bank  v.  Mersereau,  3  Barb.  Ch.  purchased  and  received  a  deed  for 

(N.  Y. )  528.  the  premises  from   C,  the  owner, 

11  Hill  V.  West.  8  Ohio  222;  White  and  executed  back  to  him  a  mort- 

V.   Patten.   24    Pick.    (Mass.)    324;  gage  thereon   to  secure  a  part  of 

Dudley  v.  Cadwell,  19  Conn.  227;  the  purchase  money,  held,  that  the 

Greene  v.  Clark.  13  Vt.  158.  rights  of  C.   under  his  mortgage 


494  THE    COVENANTS. 

essary  inquiries  to  satisfy  himself  as  to  the  character  of  the 
estate,  and  the  title  by  which  it  is  derived,  prior  to  that  time. 
The  obligation  of  the  vendor,  it  is  contended,  is  limited  to 
putting  the  vendee  into  the  same  situation  in  which  h.e  stood 
himself;  it  is  the  duty  of  the  vendee  to  detennine,  by  a  proper 
examination,  what  the  title  of  the  vendor  is,  and  to  satisfy 
himself  that  the  same  is  marketable.  Having  done  this  it 
rests  with  him  to  decide  whether  he  will  complete  the  bargain, 
and  if  he  decides  in  the  aflSrmative  the  vendor  makes  a  convey- 
ance which  simply  covenants  that  he  has  done  no  act  to  affect 
or  derogate  from  his  title. 

There  has  been  a  tendency  manifested  in  some  of  the  eastern 
states  to  follow  the  English  system  of  conveyancing  in  respect 
to  covenants,  and  restrict  the  purchaser  to  covenants  against 
the  grantor's  own  acts,  and  in  furtherance  of  this  principle 
an  agreement  to  convey  by  "warranty  deed"  has  been  con- 
strued to  mean  a  deed  with  "special  warranty"  or  a  warranty 
against  any  acts  of  the  vendor  done  or  suffered  and  against 
the  acts  of  those  claiming  under  liim.^'"'  It  is  to  be  observed, 
however,  that  the  states  in  which  this  doctrine  has  been  recog- 
nized or  adopted  are  few  in  number,  and  of  that  class  which 
has  long  been  ruled  by  English  precedents.  In  the  great 
majority  of  the  states  a  contrary  rule  prevails;  and  the  gen- 
eral American  doctrine  may  be  safely  stated  as  that,  when  one 
makes  a  contract  of  sale  for  his  own  benefit,  in  the  absence 
of  any  special  contract  to  the  contrary,  there  is  an  implication 
from  the  nature  of  the  transaction  that  he  will  make  a  deed 
with  general  warranty.^ ^  The  language  of  the  agreement  may 
sometimes  be  susceptible  of  such  construction  as  to  negative 
this  implication,  as  where  some  special  title,  or  the  right,  title 

were  not  affected  by  the  prior  con-  title   inserted    in    the   conveyance, 

veyance  from  A.  to  B.     Morgan  v.  Rawle  on  Covenants,   §   29.     This 

Graham,  35  Iowa  213.  rule   has  also  been   recognized   in 

15  Espy  v.  Anderson,  14  Pa.  312;  Massachusetts,  in  Kyle  v.  Kavan- 

Cadwalader  v.  Tryon,  37  Pa.  322.  agh,  103  Mass.  359. 
Mr.  Rawle  states  that  in  the  large        is  Faircloth  v.  Isler,  75  N.  C.  551; 

cities  of  Pennsylvania,  in  ordinary  Allen  v.  Hazen,  26  Mich.  143;   Ho- 

cases,  a  covenant  of  warranty  lim-  back  v.   Kilgore,   26   Gratt.    (Va.) 

ited  to  the  acts  of  the  vendor  and  442;    Travenner  v.   Barrett,  21  W. 

those  claiming  under  him,  and  in  Va.  656;  Linn  v.  Barkey,  7  Ind.  70; 

some  instances  carried  back  to  the  Bethell    v.    Bethell,    92    Ind.    318; 

last  person  claiming  by  purchase,  Bowen  v.  Thrall,  28  Vt.  385;  Clark 

is  the   only  express  covenant   for  v.  Lyons,  25  111.  105;  Herryford  v. 


THE    COVENANTS.  495 

and  interest  of  the  vendor,  forais  tlie  subject  of  the  sale;  but 
as  a  general  rule,  uj)on  an  aj!;reement  for  the  sale  of  land,  the 
vendor,  thou<,fh  nothing  be  said  in  the  contract  on  the  subject, 
is  considered  as  contracting  for  a  general  warranty.  This 
would  certainly  be  the  case  where  the  agreement  contains 
stiiMilations  for  title,  and  usually  an  agreement  to  convey  by 
"good  and  suflicient"  deed  will  receive  a  construction  of  this 
character. 

Nor  is  there  anything  harsh,  oppressive  or  unjust  in  this 
rule;  on  the  contrary,  it  is  in  consonance  with  every  x)rinciple 
of  natural  justice,  and  in  its  practical  api)lication  tends  to  give 
stability  and  permanence  to  real  estate  titles.  Indeed,  the 
very  fact  that  a  vendor  is  unwilling  to  warrant  the  title  to  the 
property  he  sells,  or  at  best  is  unwilling  to  do  more  than  cov- 
enant against  his  own  acts,  is,  in  itself,  an  imputation  of  dis- 
credit, or,  as  remarked  by  Story,  J.,  "a  significant  circum- 
stance in  aftecting  a  purchaser  with  notice  of  outstanding 
equities  or  paramount  title.''^'^  At  the  same  time  there  is 
much  to  be  said  in  favor  of  a  contrary  rule,  for  the  obligation 
to  convey  by  "good  and  sulticient  deed"  imports  nothing  more 
than  a  deed  wiiich  shall  be  effective  to  convey  the  land  with 
all  its  incidents  and  furnish  a  valid  and  unassailable  title. 
Where  a  purchaser  expects  or  recjuires  covenants,  such 
expectation  or  requirement  should,  by  strict  analogy  to  the 
law  which  dominates  other  spcx-ies  of  written  contracts,  be 
based  upon  some  positive  stipulation  or  agreement;  for  the 
covenants  do  not  constitute  title,  nor  are  they  in  any  manner 
necessary  to  its  pro])er  devolution. 

§  418.  Contract  for  conveyance  with  "usual  covenants."  It 
is  not  uncommon  for  parties  to  stipulate  for  conveyance  by 
deed  with  "usual  covenants,''  "custonuiry  covenants"  or  equiv- 
alent expressions.  The  question  then  presents  itself.  What  are 
"usual  covenants?"  Probably  any  well-settled  local  usage 
might  be  shown  in  such  a  case  to  explain  the  meaning  of  these 
words  and  thereby  afford  a  ground  for  the  iutei-]>retation  of 
the  deed.^8    It  would  seem,  however,  that  in  the  absence  of  any 

Turner,  67  Mo.  296;  Taul  v.  Brad-  i-  See  Oliver  v.  Piatt,  3  How.  (C. 

ford,  20  Tex.  264;  Witter  v.  Biscoe.  Ct.)    410. 

13  Ark.  422;  Johnson  v.  Piper,  4  is  a  usage,  if  it  be  ancient.  no- 
Minn.  195;  Hedges  v.  Kerr,  4  B.  torious.  and  reasonable,  may  enter 
Mon.    (Ky.)    528.  into   and    become    part   of   a   con- 


496  THE    COVENANTS. 

siu-b  usage,  or  of  any  attempt  to  rely  on  local  usage,  the  true 
construction  would  be  that  the  purchaser  might  insist  upon 
the  personal  covenants  now  generally  inserted  in  deeds  of 
conveyance  in  this  country,  viz.:  that  the  grantor  is  lawfully 
scnzed;  that  he  has  good  right  to  convey;  that  the  land  is  free 
from  incumbrance;  that  the  grantee  shall  quietly  enjoy;  and 
that  the  grantor  will  warrant  and  defend  the  title  against  all 
lawful  claims.^''  The  authorities  practically  agree  that  all  of 
these  covenants,  except  the  last,  are  the  usual  covenants  in  a 
conveyance  of  the  fee.  In  England,  in  lieu  of  the  covenant  for 
warranty,  the  usual  covenant  is  a  covenant  for  further  assur- 
ance ;2o  but  as  this  covenant  is  seldom  used  in  the  United 
States  it  cannot  with  propriety  be  classed  as  a  "usual  cov- 
enant," and  the  list  is  as  first  stated.^i 

§  419.  Contract  to  convey  with  warranty.  While  it  w^as 
formerly  a  very  common  practice  for  parties  to  contract  for 
conveyance  by  ''good  and  suflficient  deed,"  it  is  now  a  more 
general  custom  to  stipulate  for  a  deed  with  warranty;  and 
while  .there  are  a  few  decisions  which  hold  that  this  clause  is 
satisfied  by  the  production  of  a  deed  regular  in  form  and  con- 
taining the  usual  covenant  of  general  warranty,  the  prevailing 
doctrine  would  seem  to  be  that  the  stipulation  is  only  satis- 
tied  by  an  operative  conveyance,  sufficient  both  in  form  and 
substance,  and  conveying  a  valid  title  to  the  land  which  the 
covenantor  has  agreed  should  be  conveyed;--  that  the  agree- 
ment is  not  complied  with  by  the  mere  giving  of  a  warranty 
deed,  where  the  grantor  has  no  title  to  the  land  or  where  his 
title  is  imperfect.23 

But  this  result  follows,  perhaps,  as  much  from  the  general 
rules  of  law  in  respect  to  the  right  of  the  purchaser  to  demand 
a  clear  title  before  parting  with  his  money  as  from  any  prin- 
ciple or  rule  of  construction.  Indeed,  it  is  an  admitted  doc- 
tract;  it  may  even  add  incidents  22  Lewis  v.  Boskins,  27  Ark.  61; 
to  it,  if  they  are  not  inconsistent  Haynes  v.  White,  55  Cal.  38;  Clark 
with  its  terms;  but  it  cannot  be  v.  Craft,  51  Ga.  368;  Brown  v.  Gam- 
set  up  to  annul  or  defeat  the  provis-  mon,  13  Me.  276;  Luckett  v.  Will- 
ions  of  a  special  contract.  Coxe  v.  iamson,  31  Mo.  54;  Dodd  v.  Sey- 
Heisley,  19  Pa.  St.  243.  mour,    21    Conn.    480;    Morgan    v. 

la  4  Kent,  Com.  471.  Smith,  11  111.  199, 

20  2  Sugd.  on  Vend.  701.  23  Everson  v.  Kirtland,  4  Paige 

21  Wilson  V.  Wood,  2  Greene  (N.     (N.  Y.)  638. 
J.  Eq.)   216, 


THE    COVENANTS.  497 

trine  that  the  ri^ilil  to  a  clear  and  uniminiircd  tille  does  not 
^rovv  out  of  the  ajj;i'eement  of  the  parties,  but  is  a  guaranteed 
le},'al  right,  and  the  purchaser  may  insist  upon  this  irre- 
spective of  any  agreements  for  covenants  unless  by  an  express 
stipulation  of  the  contract  such  right  has  been  waived. 

Among  the  earlier  decisions  there  are  a  number  of  authori- 
ties, emanating  from  courts  of  the  highest  standing,  to  the 
effect  that  a  contract  to  give  a  good  and  suflicient  warranty 
deed  of  the  land  sold  is  to  be  regarded  as  relating  only  to  the 
instrument  of  conveyance  and  not  to  the  title;  that  the  words 
"good  and  sutticient"  in  such  connection  relate  only  to  the 
validity  of  the  deed  and  its  efficacy  to  pass  the  title  which  the 
vendor  has,  and  that  they  do  not  imply  that  the  vendor's 
title  is  valid,  or  that  it  is  free  from  incumbrances;  that  the 
covenant  of  warranty  was  provided  for  merely  to  guard 
against  any  defect  of  title,  and  that  its  insertion  clearly  shows 
that  the  agreement  was  so  understood  by  the  parties.^* 

It  is  to  be  observed,  however,  that  even  these  decisions  rec- 
ognize the  necessity  of  title  in  the  vendor  whenever  the  agree- 
ment contains  a  stipulation  for  title,  and  hold,  generally,  that 
in  such  cases  the  contract  is  not  perfonned  unless  a  market- 
able title  to  the  laud  passes  by  the  deed.  The  general  prin- 
ciple to  be  collected  from  these  decisions  seems  to  be  that, 
when  the  contract  stipulates  for  a  conveyance  of  land,  or 
estate,  or  for  title  to  it,  performance  can  be  made  only  by  the 
conve^-ance  of  an  unimpeachable  title;  and  when  it  stipulates 
only  for  a  deed,  or  for  a  conveyance  by-  a  deed  described,  per- 
formance is  made  by  giving  such  a  deed  as  the  contract 
describes,  however  defective  the  title  may  be.^^  But  these 
decisions,  either  expressly  or  in  effect,  have  all  been  generally 
overruled;  and  the  later  and  better  rule  would  seem  to  be  that, 
when  a  man  buys  land  and  contracts  for  a  conveyance  in  gen- 
eral tenns,  the  ])resnnii)tion  is  that  he  exj)e(ts  title,  and  his 
vendor  is  under  obligations  to  furnish  him  with  a  perfect 
title.26  If  the  contract  provides  for  a  warranty  deed  tlie  ven- 
dor is  bound  to  make  a  marketable  title  to  the  land,  and  the 
purchaser    will  not  be  compelled  to   complete  his  jjurchase, 

-•^  See  Tinney  V.  Ashley.  15  Pick.        ^■'' Hill    v.    Hobart,    16    Me.    1(J4: 
(Mass.)  546;  Parker  v.  Parmlee,  20    Aiken  v.  Sanford,  5  Mass.  294.  ' 
Johns.  (N.  Y.)  130.  -'i  Carpenter  v.  Bailey,  17  Wend. 

(N.  Y.)   244. 

32 


498  THE    COVENANTS. 

upon  receiving  such  warranty  deed  from  the  vendor,  when  it 
appears  that  the  title  is  not  clear  or  that  the  land  is  incura- 
bered.27 

It  is  also  held  that  an  agreement  to  convey  with  warranty 
contemplates  a  conveyance  from  the  vendor  himself  and  not 
from  a  third  person,  and  that,  under  such  an  agreement,  the 
vendee  will  not  be  compelled  to  accept  a  deed  made  by  a  third 
party  who  iu  fact  possesses  the  title;  but  it  seems  that  such 
an  agreement  is  sufficiently  performed  where  the  vendor,  hav- 
ing only  an  equitable  title,  procures  the  person  having  the 
legal  title  to  convey  to  the  vendee,  and  thereupon  executes 
a  deed  with  warranty  himself.^s 

§  420.  Covenants  limited  to  estate  actually  conveyed.  No 
rule  is  better  established  or  more  generally  recognized  than 
that  which  provides  that  the  estate  granted  by  a  deed  is 
neither  enlarged  nor  diminished  by  the  covenants  for  title 
therein  contained,  whether  express  or  implied.^^  Such  cove- 
nants are  but  simple  assurances  of  the  title.  If  the  grantee 
takes  but  a  life  estate,  the  covenants  assure  that  estate  ;3^  if 
he  takes  the  fee,  but  subject  to  an  incumbrance  thereon,  the 
covenants  of  warranty  of  title,  and  even  those  against  incum- 
brances, if  such  are  inserted,  will  extend  only  to  the  estate 
actually  conveyed,  which  is  practically  an  equity  of  redemp- 
tion.3^ 

§  421.  Covenants  running  with  the  land.  A  covenant  runs 
with  the  land  when  either  the  liability  for  its  performance  or 
the  right  to  enforce  it  passes  to  the  assignee  of  the  land  it- 

2T  See    Mead    v.    Fox,    6    Cush.  of  title,  and  that  the  premises  con- 

( Mass.)  199;  Stow  v.  Stevens,  7  Vt.  veyed    were   free   and    clear    from 

27;   Little  v.  Paddleford,  13  N.  H.  all  incumbrances,  containing  no  ex- 

167;  Story  v.  Conger,  36  N.  Y.  673;  ceptions.    Held,  that  the  covenants 

Taft  V.  Kessel,  16  Wis.  273.  applied  only  to  the  estate  conveyed, 

28  Barnett  v.  Morrison,  2  Litt.  which  was  not  the  lots  absolutely, 
(Ky.)  71.  but  subject  to  the   incumbrances, 

29  Lehndorf  v.  Cope,  122  111.  317.  and    that   the   real   covenant   was 

30  Lehndorf  v.  Cope,  122  111.  317.  that,  otherwise  than  subject  to  in- 

31  A  deed  for  lots,  after  the  de-  cumbrances  named,  the  lots  were 
scription,  contained  the  following  free  from  all  incumbrances,  and 
clause:  "subject  to  the  following  in-  the  grantor  would  warrant  and  de- 
cumbrances  on  said  described  prem-  fend  the  title.  Drury  v.  Holden, 
ises,"  describing  them;  after  which  121  111.  130. 

followed  full  covenants  of  warranty 


THE    COVENANTS.  499 

self  ;32  but  in  order  that  the  covenant  may  run  with  the  land, 
its  performance  or  non-performance  must  affect  the  nature, 
quality  or  value  of  the  property  demised  independently  of  col- 
lateral circumstances,'^^  or  it  must  affect  the  mode  of  enjoy- 
ment, and  there  must  be  a  privity  between  the  contracting 
parties.''^  This  latter  is  an  essential  element,  hence,  notwith- 
standin}^^  a  wife  may  join  in  her  husband's  deed  or  a  husband 
may  join  in  a  conveyance  of  his  wife's  separate  property,  yet 
the  respective  spouses,  havinji;  no  title  or  possession  in  their 
own  rif^ht,  will  be  held  upon  the  covenants,  if  at  all,  only  as  for 
a  personal  undertakinjj^  with  the  immediate  grantee.  Such  a 
covenant  does  not  run  with  the  land  and  cannot  be  taken 
advantage  of  by  a  subsequent  grantee.^^ 

As  a  rule,  all  covenants  which  relate  to  and  are  for  its  bene- 
fit run  with  the  land,  and  may  be  enforcc^d  by  each  successive 
assignee  into  whose  hands  it  may  come  by  conveyance  or 
assignment.^^  Where,  however,  the  covenant  relates  to  mat- 
ters collateral  to  the  land,  its  obligation  will  be  confined 
strictly  to  the  original  parties  to  the  agreement,^^  the  covenant 
in  such  case  being  personal.  So,  too,  there  is  a  wide  difference 
between  the  transfer  of  the  burden  of  a  covenant  running 
with  the  land  and  of  the  benefit  of  the  covenant;  or,  in  other 

32  Dorsey  v.  R.  R.  Co.  58  111.  65;  of  estate  existing  between  the  cove- 
Brown  V.  Staples,  28  Me.  497;  nantor  and  covenantee,  or  is  cre- 
Clarke  v.  Swift,  3  Met.  (Mass.)  ated  at  the  time  of  making  the 
390.  covenant,  runs  with  the  land,  and 

33  Norman  v.  Wells,  17  Wend,  is  binding  upon  subsequent  grant- 
(N.  Y.)   136.  ees.      See    Bronson    v.    Coffin,    108 

34  Wiggins  V.  R'y  Co.  94  111.  83;  Mass.  175;  Hazlett  v.  binclair.  76 
Norcross  v.  James,  140  Mass.  188.  Ind.  488;  Kellogg  v.  Robinson.  6 
When  the  relation  of  tenure  is  ere-  Vt.  276;  Easter  v.  R.  R.  Co.  14 
ated  by  a  grant,  all  the  covenants  Ohio  St.  48;  St.  Louis,  etc.  R.  R. 
of  the  grantee  for  himself  and  his  Co.  v.  Mitchell,  47  111.  165.  A  cove- 
assigns  which  affect  the  land  nant  not  to  establish  another  mill- 
granted  will  be  a  charge  upon  it  site  on  the  same  stream  has  been 
and  bind  every  one  to  whom  it  may  held  to  have  this  effect.  Norman 
subsequently  come  by  assignment,  v.  Wells,  17  Wend.  (N.  Y.)  36.  Or 
Wiggins  v.  R'y  Co.  94  111.  83.  not  to  engage  in  offensive  trades 

35  Myatt  v.  Coe,  152  N.  Y.  427.         upon     the    premises.      Barron     v. 
3«  Sterling  Hydraulic  Co.  v.  Will-    Richard,  3  Edw.  Ch.  (N.  Y.)  96. 

iams,  66  111.  393.    In  several  of  the  37  Gibson  v.  Holden,  115  111.  199; 

states  it  has  been  held  that  a  cove-  Parish  v.  Whitney,  3  Gray  (Mass.) 

nant  to  erect  and  maintain  a  parti-  516. 
tion  fence,  where  there  is  privity 


500  THE    COVENANTS. 

words,  of  the  liability  to  fulfill  the  covenant  and  of  the  right 
to  exact  its  fulfillment.  The  benefit  will  pass  with  the  land 
to  which  it  is  incident,  but  the  burden  or  liability  will  be  con- 
fined to  the  original  covenantor,  unless  the  relation  of  privity 
of  estate  or  tenure  exists  or  is  created  between  the  covenantor 
and  the  covenantee  at  the  time  when  the  covenant  was  made.^s 
This  naturally  follows  from  the  principle  that  the  obligation 
of  all  contracts  is  ordinarily  limited  to  those  by  whom  they 
are  made,  and  if  privity  of  contract  be  dispensed  with,  its  ab- 
sence must  be  supplied  by  privity  of  estate. 

Where  a  covenant  is  not  of  such  a  nature  that  the  law  per- 
mits it  to  be  attached  to  the  estate  as  a  covenant  running  with 
the  land,  it  cannot  be  made  such  by  agreement  of  the  par- 
ties.39 

It  is  a  further  rule  that  covenants  will  run  with  incorporeal 
as  well  as  corporeal  hereditaments.'*^ 

The  covenant  of  warranty  is  always  held  to  be  prospective, 
and  to  be  unbroken  until  eviction.  This  covenant,  therefore, 
always  runs  with  the  land  for  the  benefit  of  any  and  all  suc- 
cessive grantees.'*^  The  same  is  true  of  the  covenant  for  quiet 
enjoyment;  and  while  covenants  for  seizin  and  against  incum- 
brances are  generally  held  to  be  in  present!,  and  broken,  if  at 
all,  at  the  time  they  are  made,  and  hence  becoming  mere 
cJioses  in  action  enforceable  only  by  the  original  covenantee,'*^ 
yet  in  some  of  the  states  it  is  held  that  they  too  run  with  the 
land  so  far  as  to  permit  an  action  to  the  particular  successive 
grantee  on  whom  the  damage  occasioned  by  their  breach  act- 
ually falls.43 

In  estates  not  of  inheritance  or  less  than  the  fee,  all  cove- 
nants which  come  within  the  general  rules  first  mentioned  are 

38  Cole  V.  Hughes,  54  N.  Y.  444;  Mitchell  v.  Warner,  5  Conn.  497 
Weld  V.  Nichols,  17  Pick.  (Mass.)  Flaniken  v.  Neal,  67  Tex.  629 
.543;  and  see  Hurd  v.  Curtis,  19  Montgomery  v.  Reed,  69  Me.  510 
Pick.    (Mass.);     Harsha    v.    Reid,  Wyman  v.  Ballard,  12  Mass.  306. 

45  N.  Y.  415.  -^^  Blondeau  v.  Sheridan,  81  Mo. 

39  Gibson  v.  Holden,  115  111.  199.  545;    Davenport  v.   Davenport,    52 

40  Fitch  V.  Johnson,  104  111.  Ill;  Mich.  587;  Real  v.  Hollister,  20 
Van  Rensselaer  v.  Read,  26  N.  Y.  Neb.  112. 

558;    Hazlett  v.    Sinclair,   76   Ind.  43  See  Allen  v.  Kennedy,  91  Mo. 

448;  but  see  Mitchell  v.  Warner,  5  324;   Cole  v.  Kimball,  52  Vt.  639; 

Conn.  497;  Wheelock  v.  Thayer,  16  Knadler  v.  Sharp,  26  Iowa  232.    In 

Pick.  (Mass.)  68.  Massachusetts   and    Maine   this   is 

^1  Chase  V.  Weston,  12  N.  H.  413;  made  so  by  statute.     The  matter 


THE    COVENANTS.  501 

(Iccmod  to  nm  with  tlic  land.    Thus,  a  covenant  to  rcijair^'  is 
icj^arded  as  a  continuing;  covenant. 

422.  Effect  and  extent  of  restrictions.  Notwithstanding 
that  the  covenants  arc  thcm.seives  general  and  unlimited, 
their  eflect  and  operation  may  be  restrained  by  an  agreement 
of  the  i)arties  inserted  in  the  deed,  or  by  special  covenants  in 
resjx'ct  to  the  land,  estate  or  title. 

It  would  seem,  however,  that  a  special  exception  or  restric- 
tion annexed  to  one  covenant  will  not  have  the  effect  to  qualify 
the  others;^''  and  that  it  is  only  when  the  words  of  exception 
or  qualification  are  not  annexed  to  any  one  of  the  covenants, 
but  are  part  of  the  description  of  the  property  granted,  that 
they  apply  to  all  of  the  covenants  alike.^^  As,  where  a  cove- 
nant against  incumbrances  except  a  certain  mortgage  pre- 
cedes a  general  covenant  of  warranty  without  exception  or 
qualification,  the  mortgage,  it  is  held,  will  not  be  excepted 
from  such  covenant  of  warranty.^"  So,  also,  if  covenants  of 
warranty  are  introduced,  but  with  restrictive  words  confining 
their  operation  to  the  covenantor's  own  acts,  and  a  general 
covenant  for  quiet  enjoyment  is  also  made  with  no  qualifying 
words,  the  covenant  for  quiet  enjoyment  will  not,  it  seems,  be 
restrained  by  the  words  of  restriction  applied  to  the  other 
covenants,  for  the  reason  that  this  covenant  is  distinct  from 
the  covenant  of  title,  and  a  man  may  not  choose  to  guaranty 
his  title  generally,  and  yet  may  readily  undertake  that  the 
possession  shall  not  be  disturbed.-*^ 

Where  restrictive  words  are  inserted  in  the  first  of  several 
covenants  having  the  same  object,  they  will  be  construed  as 
extending  to  all  the  covenants,  although  they  are  distinct.-*" 

will   receive   further  treatment  in  lish  cases    (see  2   Siigd.   on  Vend, 

that  part  of  the  work  relating  to  281,  and   cases  cited),  and   which 

damages.  has  been  approved  by  some  Amer- 

4<  Demarest  v.   Willard,   8   Cow,  ican  decisions.     See  Eastabrook  v. 

(N.  Y.)206.  Smith,   6  Gray    (Mass.)    572.     But 

•«5  Eastabrook  v.   Smith,   6  Gray  in  the  United  States  the  covenant 

(Mass.)  572;  Freeman  v.  Foster.  55  of   warranty   and    of   quiet   enjoy- 

Me.  508.  ment  are  practically  the  same. 

^••>  Freeman  v.  Foster.  55  Me.  508.        tn  Sumner  v.    Williams,   8   Mass. 

47  Sumner  v.  Williams.  8  Mass.  202.  But  where  the  covenants  are 
202;  but  compare  Drury  v.  Holden,  of  divers  natures  and  concern  dif- 
121  111.  130.  ferent    things,     restrictive    words 

48  This  is  the  doctrine  of  the  Eng-  added  to  one  will  not  control  the 


502  THE    COVENANTS. 

But  whore  the  first  covenant  is  general,  a  subsequent  limited 
covenant  will  not  restrain  the  generality  of  the  preceding 
covenant,  unless  an  express  intention  to  do  so  api)ear,  or  the 
covenants  be  inconsistent,  or  unless  there  appear  something  to 
connect  the  general  covenant  with  the  restrictive  covenant,  or 
unless  there  are  words  in  the  covenant  itself  amounting  to  a 
(]ualitication.  And  as,  on  the  one  hand,  a  subsequent  limited 
covenant  does  not  restrain  a  preceding  general  covenant,  so, 
on  the  other,  a  preceding  general  covenant  will  not  enlarge  a 
subsequent  limited  covenant. 

§  423.  Conveyances  by  attorney.  It  would  seem  to  have 
been  formerly  held,  where  an  attorney  in  fact  was  authorized 
to  sell  land  and  execute  conveyance  thereof,  but  no  author- 
ity was  given  to  bind  the  principal  by  covenants,  that  no 
covenants  could  be  demanded  by  the  purchaser.  The  theory 
upon  which  these  cases  proceeded  was  that  a  conveyance  or 
assurance  is  valid  and  perfect  without  either  warranty  or 
personal  covenants,  and  therefore  they  are  not  necessarily  im- 
plied in  an  authority  to  convey;  that  such  authority  is  to  be 
strictly  construed,  and  any  act  varying  in  substance  from  it  is 
void.'^*'  But  this  doctrine  has  long  since  been  denied;  and,  as 
the  right  of  the  purchaser  to  covenants  of  title  from  his 
grantor  is  now  unquestioned,  so  the  law  will  not  permit  this 
right  to  be  defeated  simply  because  the  grantor  has  delegated 
to  a  third  person  a  ministerial  authority  to  consummate  the 
contract.'^ 

§  424.  Covenant  of  seizin.  The  first  of  the  five  covenants 
usually  inserted  in  deeds  of  conveyance  is  that  the  grantor  is 
well  seized  of  the  premises  conveyed  and  has  good  right  to 
convey  same.  This  is  called  the  covenant  of  seizin.  It  is  a 
covenant  in  presen.ti,  and  broken,  if  at  all,  when  the  deed  is 
delivered.  Nothing  arising  after  delivery  can  be  assigned  as 
a  breach.52  if  the  grantor  is  not  well  seized,  or  if  he  has  not 
the  power  to  convey  at  the  time  of  delivery  of  the  deed,  an 
action  at  once  accrues,  and  a  recovery  may  be  had.^^ 

generality  of  the  others,  although  (Mass.)  410;  Bronson  v.  Coffin,  118 

they  all  relate  to  the  same  land.  Mass.   161;    Vanda  v.  Hopkins,     1 

■''>See     Nixon     v.     Hyserott,     5  J.  J.  Marsh.  (Ky.)  293. 

Johns.   (N.  Y.)   58;  Mead  v.  John-  "'-'Jones  v.  Warner,  81  111.   343; 

son,  3  Conn.  592.  Messer  v.  Oestreich,  52  Wis.  684. 

51  Ward  V.  Bartholomew,  6  Pick.  53  King  v.  Gilson,  32  111.  348. 


THE   COVENANTS.  503 

The  covenant  of  seizin  extends  to  all  titles  existing,'  in  thiid 
persons  which  may  defeat  the  estate  granted  by  the  cove- 
nantor, bill  not  to  a  title  set  up  by  the  ^M-antee,  the  vendee 
beinj^  estopped  from  settinj^  up  a  previously-ac(iuired  title  to 
defeat  his  vendor."'* 

The  exact  scojje  of  this  covenant  does  not  seem  to  be  well 
defined  in  this  country,  nor  is  it  permitted  to  have  the  same 
effect  in  all  of  the  states.  In  Massachusetts,  and  the  states 
which  have  followed  the  construction  which  there  obtains, 
these  covenants  do  not  express  or  imply  a  warranty  of  any 
absolute  title;  they  relate  to  the  actual  seizin  of  the  grantor, 
and  that  he  has  such  possession  of  the  premises  as  that  he 
may  execute  a  deed  thereof.^^  On  the  other  hand,  the  expres- 
sions that  the  grantor  is  well  seized  of  the  land  conveyed  and 
has  good  right  to  convey,  or  those  of  similar  import,  are  con- 
sidered in  many  states  as  amounting  to  a  covenant  of  title.''*' 

j^  425.  Covenant  for  quiet  enjoyment.  This  covenant  goes 
only  to  the  possession  and  not  to  the  title,^^  and  does  not  ex- 
tend so  far  as  the  covenant  of  warranty.  It  is  broken  only  by 
an  entry,  or  lawful  expulsion  from,  or  some  actual  disturbance 
in,  the  possession.'^s  It  requires  no  precise  or  technical  lan- 
guage to  raise  it,  and  will  be  created  by  any  words  which 
amount  to  or  import  an  agreement  to  that  efifect.^^  In  its  prac- 
tical operation  it  is  prospective,  runs  with  the  land,  descends 
to  heirs,  and  vests  in  assignees  and  purchasers. 

•'•*  Furness  v.  Williams,  11  111.  sons.  But  it  is  now  well  settled 
229.  that  a  covenant  for  title  gives  the 

•'■••'■'  Raymond  v.  Raymond,  10  grantee  a  claim  against  the  grantor 
Mass.  134;  and  see  Backus  v.  Me-  only  where  the  former  is  disturbed 
Coy,  3  Ohio  211;  Boothby  v.  Hath-  by  one  having  a  good  adverse 
away,  20  Me.  255;  Watts  v.  Parker,  claim  unless  tortious  evictions  are 
27  111.  229.  included  by  express  words.     This 

•10  Richardson  v.  Dorr,  5  Vt.  21;  principle  is  founded  upon  the  pol- 
Lockwood  V.  Sturdevant,  6  Conn,  icy  of  preventing  any  connivance 
385;  Parker  v.  Brown,  15  N.  H.  186.  between  the  grantee  and  a  stranger 
And  see  Rawle  on  Govts.,  §  45  without  title  for  the  purpose  of  re- 
et  seq.,  for  a  discussion  of  the  sub-  covering  damages  from  the 
ject.  grantor,  and  also  upon  the  consid- 

•'■''  Beebe  v.  Swartwout,  3  Gilm.  eration  that  one  wrongfully  dis- 
(111.)  162.  turbed  has  a  remedy  against  the 

•'-8  This    covenant    was    formerly    wrong-doer, 
held  to  embrace  wrongful  as  well        '>!' Midgett  v.  Brooks,  12  Ired.  (N. 
as  lawful  evictions  by  third  per-    C.)  145. 


504  THE   COVENANTS. 

It  is  regarded  as  one  of  the  five  covenants  to  which  a  pur- 
chaser is  entitled  under  a  contract  for  a  deed  with  covenants; 
and  notwithstanding  that  the  covenant  of  general  warranty  is 
in  effect  a  covenant  for  quiet  enjoyment,  it  is  customary  to 
specifically  insert  this  covenant  as  well. 

§  426.  Covenant  against  incumbrances.  Among  the  "usual 
covenants"  which  a  purchaser  has  a  right  to  demand  is  that 
against  incumbrances,  or  any  right  or  interest  in  the  land 
which  may  subsist  in  third  persons  to  the  diminution  of  the 
value  of  the  land,  but  consistent  with  the  passing  of  the  fee 
by  conveyance.  In  its  operation  it  is  practically  a  covenant 
for  indemnity.  It  is  considered  to  be  in  presenti,  and  broken, 
if  at  all,  as  soon  as  made."^o 

A  vendor  who  desires  to  avoid  the  effect  of  this  covenant 
should,  for  his  own  protection,  specially  and  expressly  except 
from  its  operation  all  known  incumbrances  of  every  kind;  for, 
by  the  ruling  of  recent  decisions,  an  incumbrance  is  not  only 
such  matters  as  merely  affect  the  title,  but  includes  many 
things  that  affect  only  the  physical  condition  of  the  property 
as  well.  The  fact  that  such  incumbrances  are  known  to  the 
vendee  in  no  way  affects  the  liability  of  the  vendor  or  impairs 
the  vendee's  right  to  recover,  the  question  of  notice  in  such 
cases  being  immaterial.^^ 

§  427.  Further  assurance.  In  addition  to  the  familiar  cov- 
enants to  which  allusion  has  already  been  made  there  are 
others  of  primary  importance  to  intending  purchasers,  and  to 
which  they  are  frequently  entitled.  The  chief  of  these  less 
known  covenants  is  that  called  a  covenant  for  further  assur- 
ance, which  relates  both  to  the  title  of  the  vendor  and  to  the 
instrument  of  conveyance,  and  operates  as  well  to  secure  the 
performance  of  all  acts  necessary  for  supplying  any  defect  in 
the  former  as  to  remove  all  objections  to  the  sufficiency  and 
security  of  the  latter.  It  is  less  extensively  used  in  the  United 
States  than  any  of  the  other  covenants  for  title;  but  this 
would  seem,  says  Mr.  Rawle,  "to  be  owing  rather  to  custom 
and  the  inartificial  character  of  early  conveyances  than  to  any 

60  For    a    further    discussion    of  431;   Snyder  v.  Lane,  10  Ind.  424; 

this     subject     with     reference     to  Smith  v.   Lloyd,     29     Mich.    382; 

breach  and  damages,  see  "Actions  Worthington  v.  Curd,  22  Ark.  285; 

for  Damages,"  in^ra.  Ladd  v.  Noyes,  137  Mass.  151;  Wil- 

ei  Hubbard  v.  Norton,   10  Conn,  liamson  v.  Holt,  62  Mo.  405. 


THE    COVENANTS.  505 

want  of  usefuliK'SH  in  (he  covenant  itself  or  (rini<iilty  uh  to  its 
application."*^^ 

The  covenant  is  practically  an  undertaking^  on  the  part  of 
the  vendor  to  do  such  further  acts  for  the  purpose  of  perfect- 
ing the  purchaser's  title  as  the  latter  may  reasonably  require. 
In  the  interi)retation  of  this  covenant  due  rej^ard  niust  be  had 
to  the  character  of  the  estate  conveyed — its  (juantity,  quality 
and  extent — and  the  covenants  which  accompany  it.  If  these 
latter  are  general,  with  no  limitations  or  restrictions,  the  pur- 
chaser has  a  rij^ht,  under  the  covenant  for  further  assurance, 
to  require  the  conveyance  of  a  paramount  title  or  the  removal 
of  an  outstanding;  incumbrance;  but  if  the  estate  conveyed  be 
limited  and  the  expressed  covenants  are  restrained  to  some 
particular  interest  or  estate,  the  purchaser  cannot  by  virtue 
of  his  covenant  for  further  assurance  require  the  conveyance 
to  himself  of  any  other  or  greater  estate,  or  the  removal  of 
incumbrances  not  created  by  the  vendor.^^  tj^^  utmost  limits 
to  which  courts  have  gone  has  been  to  extend  the  operation 
of  the  covenant  to  the  very  estate  or  interest  conveyed  by  the 
deed.«4 

The  further  assurance  must  in  all  cases  be  reasonable,  and 
conform  to  the  nature  and  purport  of  the  original  bargain.*''"* 

§  428.  Covenant  of  non-claim.  It  was  formerly  a  custom 
to  insert  in  deeds  of  limited  warranty  a  clause,  or,  as  it  was 
sometimes  called,  a  covenant,  of  ^'non-claim."  This,  in  the 
original  form,  was  inserted  immediately  after  the  liahcndum, 
without  the  usual  words  of  covenant  being  prefixed,  and  pur- 
ported to  be  a  denial  of  any  further  rights  in  the  grantor  in 
relation  to  the  projjcrty  conveyed.  It  might  be  general,  but 
was  usually  limited  to  the  grantor  or  those  claiming  under 
him.*'''''     In  practice  the  covenant  of  non-claim  is  now  seldom 

62  Rawle  on  Govts.,  §  98.  <'■■'•  Miller  v.  Parsons,  9  Johns.  (N. 

63  See    Armstrong   v.    Darby,    26    Y.)   336. 

Mo.  517.  «n  See  Rawle  on  Covenants  for 
6»  The  covenants  generally  can  Title,  p.  223,  3d  ed.  The  following 
only  extend  to  the  estate  granted,  was  a  common  form  of  this  cov- 
and  there  must  be  something  very  enant:  "So  that  neither  I,  the 
peculiar  in  their  terms  to  warrant  said  (grantor),  nor  my  heirs  or 
such  a  construction  of  them  as  to  any  other  person  or  persons  claim- 
enlarge  the  estate  granted  in  the  Ing  from  or  under  me  or  them,  or 
premises.  Corbin  v.  Healy,  20  in  the  name,  right  or  stead  of  me 
Pick.  (Mass.)  514.  or  them,  shall  or  will  by  any  way 


506  THE    COVENANTS. 

employed,  having  been  superseded  by  the  grantor's  personal 
covenant  against  his  own  acts. 

The  legal  effect  of  the  covenant  of  non-claim  has  not  always 
received  a  uniform  interpretation,  and  in  an  early  case^'  was 
held  to  be  a  covenant  real,  which  runs  with  the  land  and  es- 
tops the  grantor  and  his  heirs  to  make  any  claim  or  set  up  any 
title  thereto;  and  such  would  certainly  be  its  effect  in  its  pres- 
ent modernized  character  of  special  warranty.  The  volume  of 
authority,  however,  does  not  sustain  this  doctrine  where  the 
covenant  retains  its  original  form,  i.  e.,  a  simple  denial  of 
further  rights.  In  this  shape  it  makes  no  assertion  of  title,  and 
at  best  can  only  be  considered  as  an  engagement  respecting 
future  conduct.  In  legal  effect  it  is  not  distinguishable  from 
an  ordinary  quitclaim,  of  which  it  is  indeed  a  form;  and  while 
it  is  operative  to  pass  all  present  interest,  and  to  that  extent  is 
binding  upon  the  grantor  and  those  in  privity  with  him,  yet, 
since  it  contains  no  warranty  of  title,  it  is  insufficient  to  con- 
vey any  after-acquired  title,  or  to  estop  the  grantor  from  the 
assertion  of  a  title  subsequently  acquired,  unless  by  so  doing 
he  is  obliged  to  deny  or  contradict  some  fact  in  addition  there- 
to alleged  in  his  former  conveyance.^^ 

§  429.  Covenant  of  warranty.  The  last  and  most  extensive 
of  all  the  covenants  is  the  covenant  of  general  warranty.  This 
covenant  is  prospective,  and  is  understood  to  be  broken  only 
upon  an  eviction,  or  by  something  equivalent  thereto.*'^  It 
runs  forever  with  the  land  into  the  hands  of  all  those  to  whom 
it  may  subsequently  come  either  by  descent  or  purchase."^^  This 
is  the  most  important  of  all  the  covenants  that  the  purchaser 
can  demand,  and  the  one  of  all  others  that  he  should  insist 
upon  having. 

§430.  Continued — ^Extinguishment  of  the  covenant.  While 
a  covenant  of  warranty  runs  forever  with  the  land  into  the 
hands  of  all  those  to  whom  it  may  come  either  by  purchase 

or  means  have,  claim  or  demand  533;   Blanchard  v.  Books,  12  Pick, 

any  right  or  title  to  the  aforesaid  (Mass.)   47;  Dart  v.  Dart,  7  Conn, 

premises,   or    any    part   or   parcel  250. 

thereof  forever."  eo  Claycomb    v.    Munger,    51    111. 

67  Fairbanks     v.     Fairbanks,     7  373;    Caldwell    v.    Kirkpatrick,     6 

Greenl.   (Me.)  96.  Ala.  62;   Reed  v.  Hatch,  55  N,  H. 

en  Partridge    v.    Patten,    33    Me.  336. 

483;  Kimball  v.  Blaisdell,  5  N.  H.  ^o  Brady  v.  Spurck,  27  111.  478. 


THE    COVENANTS.  ^J0^ 

or  descent,  jet  where  a  grantor  of  land  whose  deed  ((jnlnimd 
a  covenant  of  warranty  before  any  brcacli  of  liis  covcniini 
becomes  re-investt'd  with  the  seizin  wliich  he  c(jnvey('d,  and 
whieli  lie  covenanted  to  waiTant  iind  defend,  his  obligation  in 
that  regard  becomes  extinguished.  The  estate  granted  1m  liini 
ceases  upon  the  reconveyance,  and  the  covenant  attend;inl 
upon  the  estate,  and  which  is  only  co-extensive  with  it,  is 
extinguished  when  the  estate  ceases.^^ 

>;  431.  Cancellation  of  corresponding  covenants.  Where, 
after  a  conveyance  with  covenants,  the  same  lauds  are  re- 
convej'ed  to  the  grantor  by  his  grantee  with  like  covenants, 
the  law  construes  such  covenants  as  mutually  canc(dling  each 
other,  so  that  no  action  can  be  maintained  on  them  by  either 
of  the  parties  or  their  assignees.'^- 

§  432.  Implied  covenants.  Implied  covenants,  or,  as  they 
are  also  teinied,  covenants  in  law,  are  those  which  the  law  im- 
plies or  infers  from  the  nature  of  the  transaction,  although 
not  expressed  by  direct  language  in  the  instrument  containing 
them.  They  are  raised  by  the  employment  of  certain  words 
having  a  known  legal  operation  in  the  creation  of  an  estate, 
and  are  a  secondary  force,  as  it  were,  given  by  law,  consti- 
tuting an  agreement  on  the  part  of  the  grantor  to  protect  and 
preserve  the  estate  so  by  those  words  already  created.  In 
their  origin  they  are  distinctly  traceable  to  the  feudal  consti- 
tutions, and  grew  out  of  the  reciprocal  relations  of  the  feudal 
lord  and  his  tenant."-*  The  covenant  or  promise  was  raised 
from  the  words  of  grant,  the  fact  of  feofiment  carrying  with 
it  the  correlative  duty  of  protection,  and  this  j)rinciple  has 
been  retained  and  forms  the  basis  upon  which  inij)lied  cove- 
nants rest  wherever  they  are  permitted  to  obtain. 

The  strong  tendency  of  modern  legal  policy  has  been  to  limit 

71  Brown  v.  Metz,  33  111.  339.  to  B.,  to  avoid  circuity  of  action. 

72  As  where  A.  conveys  land  to  B.  Silverman  v.  Loomis,  104  111.  137. 
upon  which  there  is  an  incum-  ^.s  "The  lord  was  bound,"  ob- 
brance,  with  covenants  against  in-  serves  Mr.  Rawle,  "to  warrant  or 
cumbrances  and  warranty,  and  B.  insure  the  fief  against  all  persons 
subsequently  reconveys  to  A.  with  whomsoever  claiming  by  title,  and 
like  covenants,  the  several  convey-  in  case  of  loss  to  replace  it  with  an- 
ances  between  them  will  by  opera-  other;  and  when  later  it  became 
tion  of  law  cancel  or  extinguish  the  usual  to  authenticate  the  creation 
covenants  in  B.'s  deed  as  to  all  in-  or  transfer  of  estates  by  charters 
cumbrances  covered   by  A.'s  deed  or  deeds,   a   warranty  was  in   the 


508  THE    COVENANTS. 

and  restrict  the  operation  of  covenants  implied  from  the  use  of 
words  of  grant.  In  many  states  they  have  been  expressly 
abrogated  by  statute/^  and  in  the  other  states  receive  their 
main  efficacy  from  statutory  provisions.  The  emijloyment  in 
a  deed  of  the  words  ''grant,  bargain  and  sell,"  as  the  equiva- 
lent of  the  ancient  expression  "dedi,  concessi,  demisi,"  etc., 
have,  by  statute  in  the  states  which  still  recognize  implied 
covenants,  been  declared  to  be  an  express  covenant  to  the 
grantee  that  the  grantor  was  seized  of  an  indefeasible  estate 
in  fee-simple,  free  from  incumbrances  done  or  suffered  from 
the  grantor,  and  for  quiet  enjoyment  against  the  grantor,  his 
heirs  and  assigns,  unless  limited  by  express  words  contained 
in  such  deed;  and  the  grantee  may  in  any  action  assign 
breaches  as  if  such  covenants  were  expressly  inserted."^^ 

But  while  these  words  are  permitted  to  exert  a  certain  effi- 
cacy in  the  absence  of  other  and  more  direct  expressions,  yet 
their  employment  will  not  create  covenants  against  the  mani- 
fest intention  of  the  parties.  The  covenants  raised  by  law 
from  the  use  of  particular  words  in  the  deed  are  only  intended 
to  be  operative  when  the  parties  themselves  have  omitted  to 
insert  covenants,  and  the  use  of  almost  any  language  from 
which  it  appears  that  the  parties  intended  that  these  words 
should  not  have  such  an  efi'ect  will  destroy  the  force  of  the 
implied  covenants.'^^  Hence,  it  has  been  held  that,  where  a 
deed  contains  an  express  covenant,  the  statutory  covenants 
are  not  implied. 

As  previously  remarked,  however,  the  doctrine  of  the  com- 
mon law,  that  certain  words  in  the  conveyance  of  real  property 
of  themselves  import  and  make  a  covenant  in  law,  has  been 
abrogated  by  statute  in  a  number  of  states,  and  enactments 
have  been  had  which  declare  that  no  covenant  shall  be  implied 
in  any  conveyance  of  lands,  whether  such  conveyance  contain 

case  of  a  freehold  implied  from  the  Texas.  In  Montana,  Nevada,  Da- 
word  of  feoffment,  dedi.  Rawle  kota  and  New  Mexico  these  words 
on  Govts.,  §  270.  are  permitted  by  statute  to  imply 

7*  Such  is  the  case  in  New  York,  covenants  of  seizin  and  against  in- 

Michigan,  Minnesota,  Oregon,  Wis-  cumbrances. 

consin  and  Wyoming.  "'"•  Finley    v.    Steele,    23    111.    56 

T3  A  substantial  transcript  of  the  Stewart  v.  Anderson,  10  Ala.  504 

statutes  in  force  in  Illinois,  Penn-  Winston  v.  Vaughan.   22  Ark.  72 

sylvania,  Arkansas,  Alabama.  Call-  Weems  v.  McCaughan,  7  Smedes  & 

fornia,  Mississippi,  Missouri     and  M.  (Pa.)  427. 


THE    COVENANTS.  509 

Special  covenants  or  not.  It  is  believed  tiiis  view  in  supported 
by  the  sounder  reason,  and  tbat  in  time  it  will  receive  uni- 
versal recoj;ni(ion.  A  vendee,  wbeu  be  ])urcba8e8,  may  insist 
on  tbe  general  covenants  and  sucb  special  covenants  as  will 
secure  to  bim  a  perfect  indemnity  for  any  loss  or  injury  be 
may  sustain  by  reason  of  an  intrusion  or  eviction,  and  if  be 
neglects  so  to  do  be  sbould  not  be  beard  to  complain. 

§  433.  Statutory  deeds.  An  attempt  bas  been  made  in 
many  states  to  simplify  llie  forms  of  conveyancing  by  stat- 
uloi-y  enactments  presciibin^^  models  or  prec«Mlents  for  tbe 
ordinary  deeds  in  common  use  and  declaring  tbeir  elfect.  Tbe 
radical  dilTerence  between  tbese  forms  and  tbose  derived  from, 
tbe  common  law  lies  in  tbe  fact  tbat  tbey  are  entirely  witbout 
habendum,  and  tbat  tbe  force  and  effect  of  tbe  covenants, 
wben  tbe  deed  is  intended  to  carry  covenants,  bas  been  trans- 
ferred to  and  merged  into  tbe  operative  words  of  grant."'^ 
Tbese  words  are  usually  "convey  and  warrant,"  and  in  legal 
effect  tbey  imply  tbat  the  deed  shall  be  deemed  and  held  to 
be  ;i  conveyance  in  fee-simple  to  tbe  grantee,  bis  heirs  and 
assigns,  with  covenants  from  tbe  grantor  for  himself  and  bis 
heirs  that  he  is  lawfully  seized  of  the  property,  has  good  right 
to  convey  tbe  same,  and  guarantees  tbe  quiet  possession  there- 
of; tbat  tbe  same  are  free  from  all  incumbrances,  and  tbat  he 
will  warrant  and  defend  the  title  to  the  same  against  all  law- 
ful claims."^  In  a  few  states  tbe  spirit  of  "reform"  bas  evi- 
dently clouded  the  judgment  of  tbe  legislators,  and  tbe  desire 
to  "simplify"  has  cut  down  tbe  verbiage  to  the  fewest  words 
possible  to  effect  a  conveyance.  In  tbese  forms  there  is  no 
habendum  and  no  attempt  at  express  covenants.  Tbe  opera- 
tive word  of  conveyance  is  "grant,"  which  is  held  to  have  ef- 
fect as  a  covenant  against  the  grantor's  own  acts."'-' 

Statutory  deeds  of  tbe  latter  class  are  substantially  tbe  same 
as  common-law  deeds  with  implied  covenants,  the  general 
effect  of  tbe  words  "grant,  bargain  and  sell"  being  to  raise 
an  implied  covenant  against  tbe  acts  of  tbe  grantor  unless  re- 
strained by  special  statute  or  a  general  statute  abrogating  all 

^~  In  some  respects  this  is  a  re-  statute  of  Illinois,  Indiana,  Michi- 

turn  to  the  medieval  system  of  im-  gan.  Mississippi  and  Wisconsin, 

plied  warranty  as  discussed  in  the  "«  This  form  is  adopted  in  Cali- 

preceding  paragraph.  fornia.     Dakota,     Maryland     and 

'»  A  substantial  transcript  of  the  Texas. 


610  THE    COVENANTS. 

implied  covennuts  in  convcvances.  Deeds  of  the  former  class, 
made  in  conformity  to  the  statute,  have  all  the  force  and  ett'ect 
of  the  special  covenants  that  are  usually  contained  in  the  com- 
mon-law deeds  of  conveyance.  All  the  covenants  mentioned 
in  the  statute  are  to  be  regarded  and  treated  as  though  they 
were  incorporated  in  the  deed,  of  which  they  constitute  a  part 
ecjually  as  though  they  were  written  therein.^^ 

§  434.  Where  wife  refuses  to  join.  In  the  absence  of  an 
express  stipulation  providing  for  a  release  of  dower  it  w'ould 
seem  that  a  vendor  who  has  covenanted  to  convey  by  '*a  good 
and  sufficient  deed  of  general  warranty"  is  regarded  as  having 
fully  performed  his  part  of  the  agreement  if  he  tenders  a  deed 
executed  by  himself  alone,  and  containing  the  covenants  stip- 
ulated for.^^  Such  a  covenant  to  convey  amounts  to  nothing 
more,  it  is  said,  than  an  engagement  that  it  shall  bar  the  cov- 
enantor and  his  heirs  from  ever  claiming  the  land,  and  that  he 
and  his  heirs  shall  ever  undertake  to  defend  it  when  assailed 
by  paramount  title.^^  gbould  the  wife  of  the  grantor  in  the 
deed  containing  such  a  covenant,  but  whose  right  of  dower 
was  not  released  thereby,  become  a  widow  and  claim  and  re- 
cover her  dower  in  a  mode  by  which  the  grantee  might  be 
injured,  he  would  be  able  to  obtain  recompense  on  the  cove- 
nant in  his  deed,^3 

The  courts  announcing  the  foregoing  doctrine  proceed  upon 
the  theory  that  a  covenant  of  general  warranty  does  not  of 
itself  include  a  covenant  against  incumbrances,  and  that  even 
if  a  contract  to  convey  with  warranty  can  be  construed  into  a 
contract  to  make  a  deed  free  from  incumbrances,  yet  that  a 
possibility  of  dower  is  not,  within  the  sense  of  such  a  covenant, 
an  incumbrance.^^ 

§  435.  Value  of  covenants.  Mr.  Preston,  an  English  writer 
of  eminence,  seems  to  think  that  purchasers  in  general  attach 
more  value  to  covenants  for  title  than  they  are  really  worth. 
and  that  considering  the  property  of  parties,  the  chances  of 
eventual  insolvency,  etc.,  covenants  rarely  produce  the  benefit 
which  is  expected  from  tliem.^^  He  further  observes  that,  when 

80  Carver    v.    Louthain,    38    Ind.  ^^  Bostwick   v.   Williams,   36   111. 
530.  65. 

81  Bostwick   V.   Williams,   36   111.  S4  See  Powell  v.  Monson,  etc.  Co., 
65.  3  Mason  (C.  Ct.)  355. 

S2  Bostwick  V.    Williams,    36    111.        ><■>  3  Prest.  on  Abstracts,  57. 
65. 


THE    COVENANTS.  511 

tlu'  projx  riv  is  subdivided  by  sales,  it  seems  to  folldw  fr(»iii  a 
maxim  of  law  tliat  (lie  purchasers  lose  the  beiidit  of  former 
covenants,  on  the  ground  tliat  tlie  remedy  canntjt  be  ajipoi- 
tioned,  or,  in  inoi-e  corieel  Icriiis.  tlie  coveiumlor  cannot  be 
subjected  to  several  actions.  W  i(li  respect  to  the  latter  obser- 
vation, however,  the  rule  now  seems  to  be  settled  that  where 
a  covenant  runninj^  with  the  land  is  divisible  in  its  nature,  if 
the  entire  interest  in  different  parcels  of  the  land  passes  by 
assi^niment  to  separate  individuals,  the  covenant  will  attach 
on  each  separate  parcel  ijro  raia,^^'  and  while  it  is  true  that 
the  financial  responsibility  of  covenantors  is  liable  to  be  ren- 
dered valueless  by  subseciuent  insolvency,  yet  this  is  one  of 
the  risks  which  men  are  necessarily  obliged  to  assume  in  all 
transactions  involving  personal  credit  and  financial  reliance. 
Aside  from  their  financial  featui'es  as  guaranties  of  indem- 
nity, covenants  have  many  other  excellent  attributes  which 
render  them  desirable  to  the  purchaser  and  which  give  to  them 
an  actual  value.  They  act  as  estoppels  and  j)ermit  the  subse- 
(luent  inurement  of  title;  they  are  also  prima  fade  evidence 
of  legal  good  faith  in  real  estate  transactions,  often  affording 
protection  against  latent  equities;  and  in  examinations  of  title 
a  long  series  of  warranty  deeds  tends  to  give  a  stability  to 
the  title  that  no  other  agency  can  produce.  A  chain  of  title 
comj)osed  mainly  of  quitclaims  or  deeds  with  limited  cove- 
nants carries  suspicion  on  its  face,  and  under  the  rulings  of 
some  courts  is  a  direct  notification  to  the  purchaser  that  his 
title  is  doubtful,  and  that  in  accepting  the  same  he  assumes 
the  risk  of  having  it  defeated  b^'  some  existing  but  latent 
equity.  For  this  reason,  then,  if  for  no  other,  should  a  per-' 
chaser  insist  upon  the  assurance  of  his  title  by  ])i'oper  cove- 
nants; and  notwithstanding  the  fact  that  his  covenantor  is 
l)ecuniarily  unable  to  respond  in  damages  for  any  breach,  the 
covenants  themselves  may  be  a  tower  of  defense  in  case  the 
title  should  be  subsequently  assailed. 

>;  436.  Defective  covenants — Operation  and  effect.  The  in- 
troduction of  labor-saving  blanks  has  been  a  prolific  source 
of  error  in  the  draughting  of  conv(\vances.  Not  only  have 
they  served  to  beget  habits  of  carelessness  and  inattention  in 
regular  practitioners,  but  by  furnishing  in  an  abstract  form 
the  technical  knowledge  requisite  to  the  draughting  of  instru- 
»6See   Aster  v.   Miller.   2   Paige   (N.  Y.)  68. 


512  THE    COVENANTS. 

ments,  the  art  of  conveyancing-  has  become  debased,  and  the 
oflBce  of  the  convej-ancer  has  lost  its  dignity  in  the  frequent 
nsurj)ati<)ns  to  wliich  it  has  been  subjected.  Ignorant  officials, 
as  well  as  ambitious  but  economical  individuals,  each  in  turn 
assume  the  duties  of  the  conveyancer,  and,  with  the  aid  of  the 
accommodating  blank,  all'ect  to  perform  the  functions  of  his 
office.  As  a  natural  result,  we  frequently  meet  with  nuiny 
atrocious  examples  of  conveyancing,  and  courts  are  often 
called  upon  to  interpret  the  efforts  or  construe  the  inartificial 
expressions  of  the  unskilled  draughtsman.  The  very  liberal 
construction  now  awarded  deeds  and  other  instruments,  as 
well  as  the  operation  of  statutes,  which  in  a  large  measure 
have  destroyed  the  effect  of  common-law  rules,  serves  in  some 
degree  to  counteract  the  errors,  omissions  and  defects  of  the 
■amateur  conveyancer;  yet  such  is  the  ignorance  prevailing 
among  the  classes  named  of  the  nature  and  effect  of  the  opera- 
tive parts  of  deeds,  that  parties  are  frequently  surprised  into 
contracts  they  have  not  made  and  never  intended.  Particu- 
larly is  this  true  in  respect  to  the  expressed  covenants,  the 
technical  nature  of  which  is  but  slightly  understood  by  the 
masses,  and  vital  defects  are  more  frequently  met  with  in 
these  clauses  than  in  any  other  part  of  the  deed.  The  printed 
covenant  clause  ordinarily  commences  somewhat  as  follows: 

''And  the  said ,  for heirs,  etc.,  does  covenant," 

etc.  Through  ignorance  or  carelessness,  the  draughtsman 
sometimes  neglects  to  fill  either  of  these  blank  spaces,  the  first 
of  which  is  intended  for  the  names  of  the  covenanting  parties, 
and  the  second  for  personal  pronouns  indicative  of  the  same. 
The  effect  of  an  omission  to  fill  these  blanks  is  to  render  the 
entire  clause  nugatory,  for  where  these  spaces  are  not  filled 
by  the  insertion  of  any  names,  the  inference  naturally  arises 
that  no  such  covenant  was  intended  to  be  made;  nor  can  the 
context,  by  construction,  supply  the  omission.^^  This  is,  how- 
ever, an  extreme  case,  for  the  use  of  the  first  space  is  so  ob- 
vious that  few  persons  of  ordinary  comprehension  will  mistake 
its  purport;  but  the  rock  on  which  the  amateur  conveyancer 
usually  splits  is  the  second  space.  This,  when  properly  filled, 
contains  two  pronouns,  as  ''himself,  his,"  or,  "themselves, 
their;"  but  the  draughtsman,  misled,  perhaps,  by  the  context, 
and  of  course  ignorant  of  the  legal  effect  of  the  expression, 
87  Day  V.  Brown,  2  Ohio  345. 


THE    COVENANTS.  513 

usually  inseit.s  only  tlie  word  "his"  or  "their,"  as  the  case  may 
be,  and  in  this  condition  the  deed  is  delivered  and  accepted. 

The  freciucncy  willi  which  this  error  is  found  justifies  an 
inciuiry  into  its  legal  effect.  In  this  instance,  not  only  is  there 
no  direct  covenant  on  the  part  of  the  granting  party,  but 
there  is  an  une(iuivocal  covenant  for  the  heirs  of  such  jiarty; 
and  though  courts  are  ever  inclined  to  construe  evident  errors 
and  omissions  of  the  clerk  liberally,  and  to  give  effect  to  the 
instrument  according  to  the  uumifest  intenticui  of  the  i)arties,®'^ 
yet  the  principle  is  well  settled  that  the  liability  of  parties 
under  a  contract  must  depend  upon  the  terms  they  have  seen 
fit  to  use,  and  not  upon  those  they  might  have  used;^'^  while 
mistakes  of  law  never  afford  ground  for  equitable  relief.^"' 

Now,  in  the  example  under  consideration,  there  is  neither 
uncertainty'  nor  manifest  error,  and  the  legal  effect  of  a  cove- 
nant of  this  character  is,  not  that  the  grantors  will  defend  the 
title,  but  that  the  same  shall  be  defended  by  their  heirs,  etc. 
It  does  not  give  a  right  of  action  against  the  grantors  on  the 
loss  of  title,  but  provides  a  remedy  against  their  heirs  and 
legal  representatives;  it  exempts  the  grantors  from  personal 
liability,  but  binds  their  descendants  in  respect  of  the  estate 
that  may  be  cast  upon  them.  It  is  not  like  a  covenant  that  a 
person  who  is  not  a  party  to  the  deed  shall  warrant  and  de- 
fend the  title,  for  in  such  case,  upon  the  eviction  of  the 
grantee,  and  the  failure  of  such  third  person  to  comply  with 
the  terms  of  the  covenant,  an  action  might  be  maintained 
against  the  grantors,  on  the  familiar  principle  that  what  a 
party  undertakes  shall  be  performed  by  another  he  must  him- 
self perform  on  the  default  of  that  other.  In  this  case  the 
covenant  is  that  the  act  shall  be  performed  by  parties  who 
can  have  no  legal  existence  during  the  life  of  the  grantors, 
and  until  their  decease  there  is  no  person  living  who  can  be 
called  upon  to  avouch  the  title.'^i 

Such  are  the  views  expressed  by  the  supreme  court  of  Illi- 
nois, and  they  would  seem  to  be  founded  in  reason  and  upon 

«8Callins  V.  Lavalle,  44  Vt.  230;  Walker  v.  Tucker,  70  111.  527. 
Churchill  v.  Reamer,  8  Bush  (Ky.)        oo  Hayes  v.  Stiger.  29  N.  J.  Eq. 

256;    Peckham  v.  Haddock.  36  HI.  196;  Morris  v.  Hogle.  37  111.  150. 
38.  "1  Traynor  v.  Palmer,  86  111.  477; 

soDay    V.    Brown,    2    Ohio    345;  Ruffner  v.  McConnell,  14  111.  168. 
Bobb    V.    Bancroft,    13    Kan.    123; 

33 


514  THE    COVENANTS. 

sound  principle,  and  in  states  where  by  statute  no  covenants 
can  be  implied  in  deeds  or  other  instruments  the  conclusions 
above  stated  would  appear  to  be  irresistible;  yet  in  Wiscon- 
sin, where  a  statute  similar  to  that  just  mentioned  has  long 
been  in  force,  and  where  this  question  has  twice  been  pre- 
sented, a  result  diametrically  opposed  to  that  above  given  has 
been  reached.  In  the  first  case'-'^  it  was  held  that  although 
the  covenant  might  be  defective  in  law,  yet  equity  would 
always  supply  the  omission  in  conformity  with  the  evident 
intention  of  the  grantor;  while  in  the  second"^  the  covenant 
was  sustained  as  that  of  the  grantor,  notwithstanding  the 
omission.  In  neither  case,  however,  do  the  decisions  appear 
to  have  been  reached  by  much  reasoning,  nor  do  the  learned 
judges  fortify  the  same  with  any  citation  of  authority.  The 
reason  assigned  in  the  first  instance  is  obviously  defective  and 
incorrect,  for  the  ^'evident  intention  of  the  grantor"  cannot  be 
better  determined  than  from  the  language  of  the  conveyance;^* 
and  where  the  language  is  unambiguous,  although  the  parties 
may  have  failed  to  express  their  real  intention,  there  is  no 
room  for  construction,  and  the  legal  effect  of  the  agreement 
must  be  enforced.^^  Words  and  phrases  are  always  to  be 
taken  in  their  commonly  accepted  sense,  unless  a  different  in- 
tent plainly  appears;,  and  where  words  have  a  well-defined, 
specific  meaning,  importing  intention,  they  cannot  be  altered, 
limited  or  enlarged  in  their  meaning  by  implication  or  extrin- 
sic evidence.^^ 

It  is  a  rule  of  universal  recognition  that  when  parties  de- 
liberately put  their  engagements  in  writing,  in  such  terms  as 
import  a  legal  obligation,  without  any  uncertainty  as  to  the 
object  or  the  extent  of  such  engagement,  it  is  conclusively 
presumed  that  the  whole  engagement  of  the  parties,  its  ex- 
tent and  manner,  is  thereby  expressed.  To  add  to  it  by  impli- 
cation would  be  to  vary  its  terms,*^^  and  though  contracts  must 
alwaj's  receive  a  liberal  interpretation,  yet  courts  are  power- 
less to  disregard  the  terms  of  a  contract  plainly  expressed, 

92  Stanley  v.  Goodrich,  18  Wis.  Callender  v.  Dinsmore,  55  N.  Y. 
505.  200;   Fire  Ins.  Co.  v.  Doll,  35  Md. 

93  Hilmert  v.  Christian,  29  Wis.    89. 

104.  96  Galena  Ins.  Co.  v.  Kupfer,  28 

94  German   Ins.   Bank   v.   Nunes,    111.  332. 

80  Ky.  334.  97  Merchants'   Ins.   Co.   v.   Morri- 

9' Walker  v.  Tucker,  70  111.  527;    son,  62  111.  242. 


THE    COVENANTS.  515 

and  their  only  duty  is  to  enforce  the  .same  according  to  the 
intent  of  the  parties  as  shown  by  the  hinj,Miaf;e  u.sed.'*^ 

The  omission,  it  is  true,  mi;^ht  readily  he  inferred  with  ref«'r- 
enee  to  the  established  custom  of  drawin;(  eonvevances  and 
the  insertion  of  covenants;  but  the  i-ule  still  remains  that 
where  parties  have  settled  the  terms  and.  conditions  of  a  con- 
tract by  ajjreement,  which  has  been  reduced  to  writing,  they 
must  be  }2:overned  by  its  provisions,  and  will  be  concluded  by 
it  rej^ardless  of  any  usage  or  custom.^'" 

A  dillerent  case  is  i)resented  by  an  imperfectly-filled  blank, 
but  which  still  indicates  an  intention.     Thus,  a  covenant  by 

j^rantors  "for  them, —  heirs,"  etc.,  has  been  construed 

"themselves,  their  heirs,"  etc.,  and  held  to  be  the  covenant  of 
the  grantors;^  but  in  this  instance  the  intention  is  clearly 
manifest  and  the  error  of  the  clerk  very  palpable.  The  ques- 
tion of  construction  in  such  a  case  is  comparatively  simple, 
and  the  imperfect  words  show  the  intention  of  the  grantor. 
The  neglect  to  insert  the  word  "their"  was  also  immaterial,  as 
would  have  been  the  word  "heirs,"  for  the  legal  effect  of  the 
covenant  would  have  been  the  same  if  all  reference  to  the  heirs, 
executors  and  administrators  had  been  omitted.^ 

§  437.  Quitclaims.  A  quitclaim  deed  will  as  effectually 
pass  the  title  and  covenants  running  with  the  land  as  a  deed 
of  bargain  and  sale  if  no  words  restrict  its  meaning;-^  and, 
where  such  deed  contains  a  covenant  for  further  assurance, 
will  conv(\v  a  subseciuently-acquired  title  as  well  as  a  covenant 
of  warranty.^  P>ut  where  one  accepts  a  deed  without  covenants 
for  title  he  takes  the  hazard  of  the  same,  and,  in  the  absence 
of  fraud,  cannot  recover  back  the  purchase  money  on  failure 
of  titkv' 

The  operative  words  usually  employed  in  deeds  of  the  char- 
acter under  consideration  are  "convey  and  quitclaim;"  but  it 
has  been  held  that  a  deed  which  "grants,  bargains  and  sells 
all  of  the  right,  title  and  interest"  of  the  grantor  is  merely  a 

t"*Coey  V.  Lehman.  79   111.  173;  ^  Hall  v.  Bumstead.  20  Pick.  2; 

Kimball  v.  Custer,  73  111.  389.  Bell  v.  Boston.  101  Mass.  506. 

!'»  Corbet   v.   Underwood,   83    111.  ••»  Morgan  v.  Clayton,  61  111.  35; 

324;  Kimball  v.  Custor.  73  111.  389;  Saunders  v.  Flaniken,  77  Tex.  662. 

Moran  v.Prather,  23  Wall.  492;  Cal-  '  Bennett  v.  Waller.  23  111.  97. 

lender  v.  Dinsmore.  .'i.')  N.  Y.  200.  r.  Botsford  v.  Wilson.  75  111.  132. 

1  Baker  v.  Hunt.  40  111.  264. 


616  THE    COVENANTS. 

quitclaim  conveyance,  and  inoperative  to  convey  an  after- 
acquired  title.^  Where  implied  covenants  are  permitted  to 
obtain,  and  where  such  covenants  are  held  to  be  raised  by  the 
employment  of  the  words  "grant,  bargain  and  sell,"  it  may 
be  a  question  whether  this  rule  would  hold  good,  notwith- 
standing that  the  estate  purported  to  be  conveyed  is  only  the 
"right,  title  and  interest"  of  the  grantor. 

It  is  a  most  unusual  proceeding,  however,  to  insert  cove- 
nants of  any  kind  in  a  mere  quitclaim  or  a  conveyance  of  the 
grantor's  ''right,  title  and  interest"  in  the  land  described.  In- 
deed, the  i)rimary  object  of  a  conveyance  of  this  character  is 
a  simple  transfer  of  whatever  right  may  exist  in  the  vendor, 
unaccompanied  by  any  assurances  or  agreements  with  respect 
to  such  right,  the  vendee  taking  such  naked  interest  at  his 
own  risk.  But  occasionally  deeds  of  this  kind  are  made  with 
covenants  and  a  question  is  thereby  presented  with  respect  to 
the  legal  import  of  such  covenants.  The  general  opinion 
seems  to  be  that  they  are  limited  by  the  subject  matter  of  the 
conveyance,  that  is,  the  grantor's  naked  interest,  and  hence, 
are  not  broken  by  the  enforcement  of  a  paramount  title  out- 
standing against  the  grantor  at  the  time  of  the  conveyance.'^ 

6  Butcher  v.  Rogers,  60  Me.  138.  a  conveyance  of  "land"  and  of  the 
This  rule  is  not  founded  in  legal  grantor's  "interest"  in  land,  and 
reason  as  the  grantor's  interest  is  doubtless  the  distinction  will  con- 
all  that  is  conveyed  in  any  deed,  tinue  to  be  observed  despite  its 
yet  for  many  years  courts  seem  to  highly  unscientific  character, 
have  made   a  distinction   between  "  Reynolds  v.  Shaver,  59  Ark.  299. 


CnAPTEK  XVII. 


438. 

General  principles. 

§452. 

439. 

Conditions. 

440. 

Continued — Definition     and 
classification. 

453. 

441. 

Continued — Operation     and 
effect. 

454. 

442. 

Construction  of  conditions. 

443. 

Continued  —  Conditions  in 

455. 

avoidance. 

456. 

444. 

Continued  —  When       con- 

457. 

strued  as  covenants. 

458, 

445. 

Creation  of  conditions. 

459. 

446. 

Forfeiture  —  Revesting     of 

460. 

estate. 

461. 

447. 

Who  may  take  advantage  of 

condition  broken. 

462. 

448. 

Who  may  perform. 

463. 

449. 

Prevention  of  performance. 

464. 

450. 

Time  of  performance. 

451. 

Conditions    in    restraint   of 
alienation. 

465, 

CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

Continued — With  respect  to 
persons. 

Continued — With  respect  to 
time. 

Continued — With  respect  to 
prescribed  and  prohibited 
uses. 

Continued — Intoxicants. 

Conditional  limitations. 

Restrictive  stipulations. 

Restrictions  on  use. 

Building  restrictions. 

Prohibited  employments. 

Enforcement  of  restric- 
tions. 

Avoidance  of  restrictions. 

Conveyances  for  support. 

Conveyances  for  specific 
use. 

Resume. 

§  438.  General  principles.  It  is  now  well  settled  that  every 
owner  of  real  property  has  the  ri^ht  so  to  deal  with  it  as  to  re- 
strain its  use  by  his  fjrantces  within  sucli  limits  as  to  i)r('vent 
its  apjtrojH-iation  to  i)urposes  which  will  inii)aii'  the  value  or 
diminish  the  pleasure  of  the  enjoyment  of  the  land  which  he 
retains.  The  only  limitation  on  this  rif^ht  is  that  it  shall  be 
exercised  reasonably  with  due  re<;ard  to  public  policy,  and 
without  creating  any  unlawful  restraint  of  trade;  and,  kcepinj; 
within  the  limitation,  there  is  no  longer  room  for  a  doubt 
that  in  whatever  shape  such  restraint  is  placed  on  land  by  the 
terms  of  the  grant — whether  it  is  in  the  technical  form  of  a 
condition  or  covenant,  or  of  a  resei'vation  or  exception  in  the 
deed,  or  by  words  which  give  to  the  acceptance  of  the  deed 
by  the  grantee  the  force  and  effect  of  a  parol  agreement — ^it  is 
binding  as  between  the  grantor  and  the  immediate  grantee, 
and  can  be  enforced  against  him  both  at  law  and  in  equity.^ 

1  Whitney  v.  Union  R'y  Co..  11  bree,  103  Mass.  372:  Linzle  v. 
Gray   (Mass.)   359;   Gannett  v.  Al-    Mixer,  101  Mass.  512;  Harriman  v. 

517 


518        CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

A  more  difficult  question  is  presented  when  we  come  to  con- 
sider to  what  extent  and  in  what  cases  such  stipulations  are 
binding,  if  at  all,  on  those  who  take  the  estate  under  the 
grantee,  either  directly  or  by  a  derivative  title.  The  better 
opinion,  however,  seems  to  be  that  such  agreements  are  valid 
and  capable  of  enforcement  in  e(]nity  against  all  who  acquire 
the  title  with  notice  of  the  restriction.  This  opinion  seems  to 
rest  on  the  principle  that  as  in  equity  that  which  is  agreed  to 
be  done  shall  be  considered  as  performed,  a  purchaser  of  land, 
with  notice  of  the  existing  rights  of  another,  is  liable  to  the 
same  extent  and  in  the  same  manner  as  the  person  from  whom 
he  made  the  purchase,  and  is  bound  to  do  that  which  his 
vendor  had  agreed  to  perform.^  It  seems,  also,  that  such 
agreements  have  been  upheld  in  equity  as  against  subsequent 
purchasers  with  notice,  on  the  ground  that  such  stipulations 
create  an  easement  or  privilege  in  the  land  conveyed  for  the 
use  and  benefit  of  the  grantor  and  those  who  might  after- 
wards claim  under  him  as  owners  of  the  adjacent  land  of  which 
the  land  granted  originally  formed  a  part.^ 

In  neither  of  the  foregoing  cases  are  the  agreements  re- 
garded as  real  covenants  running  with  land,  nor  is  it  contended 
that  they  are  of  such  a  nature  as  to  create  a  technical  quali- 
fication of  the  title  conveyed  by  the  deed.  Indeed,  they  do 
not  affect  the  title,  but  only  the  mode  of  use.  Strictly  speak- 
ing, they  amount  to  no  more  than  personal  contracts,  and  at 
law  would  be  binding  only  on  the  original  parties.  But  in 
equity  those  claiming  title  under  them  may  resort  to  the  whole 
instrument,  including  the  covenants  and  agreements  in  gross, 
for  the  purpose  of  ascertaining  the  nature  of  the  right  in- 
tended to  be  conveyed;  and,  when  ascertained,  the  court  will 
enforce  in  favor  of  such  persons  that  use  or  mode  of  enjoy- 
ment which  the  grantor  has  seen  fit  to  impress  upon  it,  and 
thus  the  effect  of  a  grant  may  be  given  to  that  which  is  in 
the  form  of  an  agreement,  binding  at  law  only  between  the 
original  parties.^ 

Park,   55   N.  H.   471;    Emerson   v.  2  Whitney  v.  Union  R'y  Co.,   11 

Mooney,   50  N.   H.   315;    Plumb  v.  Gray   (Mass.)   359;      Schwoerer    v. 

Tubbs,    41    N.   Y.    442;    O'Brien   v.  Market  Association,   99  Mass.  298. 

Wetherill,  14  Kan.  616;   Collins  v.  3  parker  v.  Nightingale,  6  Allen 

Marcy,  25  Conn.  242;  Stines  v.  Dor-  (Mass.)  345. 

man,  25  Ohio  St.  580.  ^  Schwoerer  v.  Market  Ass'n,  99 

Mass.  298. 


CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 


il'J 


It  will  be  seen,  thcii'fijrc,  tliat  the  precise  foiiu  or  nature  of 
the  covenant  or  aj^reement  is  ininiatei-ial;  n«'itlier  is  it  essen- 
tial that  it  should  run  with  the  land.  A  itcrsonal  covenant  or 
ajfreenient  will  be  ludd  valid  and  bindinj^  in  e(iiiity  on  a  pur- 
chaser takinj;  the  estate  with  notice,  not  niercdy  because  he 
stands  as  assignee  of  the  party  who  made  the  agreement,  but 
because  he  has  taken  such  estate  in  full  view  of  an  agreement 
concerning  it  which  he  cannot  e(]ui(ably  refuse  to  jierform; 
or,  on  the  other  hand,  in  order  to  carry  out  the  plain  intent  of 
the  original  parties,  it  will  be  construed  as  creating  a  right  or 
interest  in  the  nature  of  an  incorporeal  hereditament  or  ease- 
ment appurtenant  to  the  remaining  land  belonging  to  the 
grantor  at  the  time  of  the  grant,  and  arising  out  of  and  at- 
tached to  the  land,  part  of  the  original  parcel,  conveyed  to  the 
grantee.^ 

§  439.  Conditions.  Probably  the  most  familiar  and  widely- 
employed  method  of  imposing  burdens  on  the  grantee,  or  of 
subjecting  the  estate  conveyed  to  some  particular  restriction 
or  limitation,  or  of  contining  the  enjoyment  of  the  granted 
premises  to  some  specific  use,  is  by  the  insertion  in  the  deed 
of  a  recital  technically  known  as  a  condition,  the  effect  of 
which,  in  case  of  breach,  may  be  to  modify  or  defeat  the  grant 
with  which  it  is  connected.*' 


r-  Whitney  v.  Union  R'y  Co.,  11 
Gray  (Mass.)  359. 

•■•  Conditional  estates  are  an  in- 
heritance from  the  feudal  law,  and 
originally  grew  out  of  the  condi- 
tions upon  which  fiefs  were 
granted.  They  imply  a  holding  by 
tenure,  and  for  this  reason,  if  none 
other,  are  not  in  accord  with  the 
genius  of  our  institutions,  which 
recognizes  no  superior  lord  hold- 
ing reversions  or  other  paramount 
rights,  and  are  fundamentally  op- 
posed to  the  principles  of  owner- 
ship under  allodial  titles.  For- 
feiture, which  is  the  inseparable 
legal  incident  to  such  estates,  is 
not  compatil)le  with  the  modern 
American  idea  of  full  and  complete 
ownership.     It  originated  and  was 


developed  under  a  system  radically 
different  from  that  which  obtains 
in  the  United  States,  and  which 
recognized  as  the  highest  type  of 
property  in  the  subject  only  a 
leasehold  interest;  and  although 
this  interest  might  continue  for 
an  indefinite  period  of  time  and 
was  dignified  with  the  name  of 
freehold,  it  was  still  dependent  on 
conditions,  and  the  reversion  could 
never  be  lost  to  the  ultimate  lord. 

The  principle  of  forfeiture  came 
to  us  with  other  inapt  and  incon- 
sistent doctrines  on  the  separation 
of  the  colonies,  and  has  been  re- 
tained through  a  series  of  years 
mainly  because  of  a  slavish  and, 
in  many  cases,  blind  adherence  to 
the    formidable   array   of   English 


520        CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

But  what  will  or  will  not  constitute  a  condition  is  often  a 
matter  of  nice  discrimination  and  const  ruction,  and,  as  great 
property  interests  frequently  depend  upon  the  value  to  be 
given  to  stipulations  and  recitals,  it  is  to  be  regretted  that  a 
full  review  of  the  adjudicated  cases  leaves  the  matter,  if  not 
In  doubt,  at  least  in  such  a  state  that  but  few  rules  can  be  de- 
duced for  the  benefit  of  the  practitioner.  In  theory,  perhaps, 
there  should  be  little  difficult}'  in  properly  construing  recitals 
of  the  character  under  consideration,  if  technical  words  and 
forms  of  expression  were  always  accorded  the  meaning  and 
signification  which  long  usage  and  judicial  interpretation  have 
given  them,  or  if  the  legal  consequences  which  flow  from  the 
employment  of  such  terms  could  always  be  determined  by  ar- 
bitrary rules.  But  in  practice  the  questions  thus  raised  are 
often  difficult  and  perplexing.  No  standard  is  available  to 
determine  their  value,  for  the  modern  rules  of  construction 
have  materially  changed  the  effect  of  technical  words,  while 
special  clauses  indicative  of  a  particular  intent  must  give  w'ay 
to  the  general  intent  as  developed  by  the  entire  instrument, 
read  in  the  light  of  extrinsic  facts;  and  thus  conditions  in 
form  may  be  construed  as  covenants  in  effect,  or  as  simple  stip- 
ulations operating  neither  as  conditions  or  covenants.  The 
object  of  this  chapter,  therefore,  will  be  briefly  to  consider  the 

precedents  which  American  jurists  the  construction  of  mortgages;  and 
have  falsely  endeavored  to  apply  to  the  operation  and  effect  now  ac- 
our  system  of  titles  and  estates,  corded  to  technical  recitals  import- 
But  the  original  and  inherent  prin-  ing  conditions  in  deeds  of  realty, 
ciples  of  allodial  ownership,  when  From  every  side  come  indications 
unaffected  by  the  doctrines  of  the  of  a  reversal  or  denial  of  the  com- 
common  law,  afford  no  room  for  re-  mon-law  canons  of  forfeiture;  and 
versionary  rights  in  one  who  has  as  the  bench  and  the  ran"ks  of  the 
parted  with  his  title  by  an  absolute  elementary  writers  continue  to  be 
conveyance;  and  the  doctrine  of  recruited  from  men  imbued  with 
conditional  estates,  so  far  as  it  is  American  ideas  of  American  law, 
administered  in  this  country,  forms  and  freed  from  the  influence  of  the 
an  anomalous  proceeding,  unsup-  harsh  and  inappropriate  rules  of 
ported  by  principle  and  authorized  our  English  inheritance,  forfeit- 
by  very  doubtful  precedent.  ure  of  a  fee-simple  estate  once 
That  these  sentiments  are  not  vested  will  become  an  impossibil- 
shared  alone  by  the  writer  is  evi-  ity,  and  the  more  just  and  enlight- 
dent  from  the  uniform  tendency  of  ened  rule  of  compensation  or  per- 
modern  judicial  decision;  the  formance  will  provide  an  adequate 
great  change,  which,  particularly  remedy  for  all  breaches  of  cov- 
in the  west,  has  been  wrought  in  enants  and  conditions. 


CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS.         :>2l 

operation  ol"  special  conditions  and  stijmlations  in  convey- 
ances by  deed,  and  (lie  elTecj  Ihey  may  have  iijxin  the  estate 
conveyed. 

55440.  Continued — Definition  and  classification.  Conditions 
are  classed  as  precedent  and  subseiiuent,  Conditions  pi-ecedeni 
are  such  as  must  hajjpen  or  be  perfoi-med  before  the  estate  can 
vest  or  be  enlar<^ed;  they  admit  of  no  latitude,  and  must  be 
strictly,  literally  and  punctually  perfonned."  Ordinarily  no 
questions  can  arise  as  to  their  construction,  save  only  whether 
they  should  not  be  construed  as  subsequent  rather  than  ijrece- 
dent,  for  no  precise  lanji;uaj?e  is  necessary  to  constitute  them 
when  the  intent  is  fully  disclosed;  and  whether  a  condition 
is  precedent  or  subsequent  depends  upon  the  intention  of  the 
parties  as  shown  by  a  proper  construction  of  the  whole  in- 
strument.^ Conditions  subsequent  indicate  somethinji:  to  be 
performed  after  the  estate  has  vested,  the  continuance  of  the 
estate  depending?  upon  its  performance.  It  is  this  class  of 
conditions  which  has  given  rise  to  most  of  the  litigation  on 
the  subject  as  well  as  to  the  many  embarrassing  questions  of 
construction. 

The  legal  effect  of  a  condition  precedent  is  to  withhold  the 
estate  until  performance;  the  legal  effect  of  a  condition  sub- 
sequent is  to  defeat  the  estate  already  vested  upon  a  breach  or 
non-performance.  But  although  the  several  effects  of  these 
two  classes  are  so  divergent,  it  is  not  always  easy  to  deter- 
mine whether  the  condition  is  precedent  or  subseijuent  from 
the  language  employed.  If,  however,  the  act  or  condition  re- 
quired does  not  necessarily  precede  the  vesting  of  the  estate, 
but  may  accompany  or  follow  it,  and  if  the  act  may  as  well  be 
done  after  as  before  the  vesting  of  the  estate,  or  if,  from  the 
nature  of  the  act  to  be  performed  and  the  time  required  for  its 
performance,  it  is  evidently  the  intention  of  the  parties  that 
the  estate  shall  vest  and  the  grantee  perform  the  act  after 
taking  possession,  then  the  condition  is  subsequent.*^ 

Subsequent  conditions,  as  they  tend  to  defeat  estates,  are 

7  Van  Home  v.  Dorrance,  2  Dall.  Sheppard  v.  Thomas,  26  Ark.  617; 

(U.  S.)   317;   Moakley  v.  Riggs.  19  Underhill    v.    Saratoga.    20    Barb. 

Johns.  71;  Bostwick  v.  Hess,  80  111.  455;  Finlay  v.  King's  Lessee.  3  Pet. 

138;  Taylor  v.  Bullen.  6  Cow.   (N.  (U.  S.)  346;  Gardiner  v.  Corson,  15 

Y.)   627.  Mass.  500. 

«  Rogan  V.   Walker,  1  Wis.  527;  ''Underhill  v.  Saratoga.  20  Barb. 


522        CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

not  favored  by  the  courts/^  and  are  always  to  be  strictly  con- 
strued as  against  the  grantor/^  and  with  liberal  intendments 
as  regards  the  grantee.^-  Forfeitures  are  said  to  be  odious ;^-'' 
and  unless  the  conditions  are  clearly  and  minutely  expressed/'* 
the  courts  will,  as  a  rule,  eagerly  lay  hold  of  any  plausible 
feature  to  sustain  the  grant,^'"'  and  for  this  purpose  will  always, 
when  tlie  import  of  the  language  used  is  doubtful,  incline  to 
interpret  the  recitals  as  covenants  rather  than  conditions.^  ^ 

AYhere  a  conveyance  of  land  in  fee  is  made  upon  a  condi- 
tion subsequent,  the  fee  remains  in  the  grantee  until  breach  of 
condition  and  a  re-entry  by  the  grantor.  The  condition  has 
no  effect  to  limit  the  title  until  it  becomes  operative  to  defeat 
it;  and  the  possibility  of  reverter,  which  is  all  that  remains  in 
the  grantor,  is  not  an  estate  in  the  land.^^  The  estate  held  by 
the  grantee  will,  of  course,  remain  defeasible  until  the  condi- 


455;  Nicoll  v.  R.  Co.,  2  Kernan  (N. 
Y.  121;  Finlay  v.  King's  Lessee,  3 
Pet.  (U.  S.)  374. 

10  Palmer  v.  Ford,  70  111.  196; 
Warner  v.  Bennett,  31  Conn.  478; 
Craig  V.  Wells,  11  N.  Y.  315;  Paden 
V.  R.  R.  Co.,  73  Iowa  328;  Curtis 
V.  Board  of  Education,  43  Kan.  138; 
Higbee  v.  Rodeman,  129  Ind.  244; 
compare  Mott  v.  Danville  Sem- 
inary, 129  111.  403. 

11  Gadberry  v.  Sheppard,  27  Miss. 
203;  Hoytv.  Kimball,  49  N.  H.  322; 
Moore  v.  Pitts,  53  N.  Y.  85 ;  Duryea 
V.  Mayor,  62  N.  Y.  592. 

12  Palmer  v.  Ford,  70  111.  369; 
Woodworth  v.  Payne,  74  N.  Y.  196; 
Glenn  v.  Davis,  35  Md.  208;  Merri- 
field  V.  Cobleigh,  4  Cush.  (Mass.) 
184;  McQuesten  v.  Morgan,  34  N. 
H.  400.  It  is  upon  this  principle 
that  it  has  been  held  that  where  a 
condition  applies  in  terms  to  the 
grantee,  without  mention  of  his 
heirs,  etc.,  the  condition  cannot 
be  broken  after  the  death  of  the 
grantee.  So,  also,  although  the 
heirs,  etc.,  are  named,  yet  if  as- 
signs are  not,  it  will  not  be  broken 


by  any  act  of  an  assignee.    Emer- 
son v.  Simpson,  43  N.  H.  475. 

13  Warner  v.  Bennett,  31  Conn. 
478;  Ins.  Co.  v.  Pierce,  75  111.  427; 
Rowell  V.  Jewett,  71  Me.  408. 

14  Woodworth  v.  Payne,  74  N.  Y. 
196.  The  extent  and  meaning  of  a 
condition  and  the  fact  of  a  breach 
are  questions  strictissima  juris; 
and  a  plaintiff,  to  defeat  an  estate 
of  his  own  creation,  must  bring 
the  defendant  clearly  within  its 
letter.  Lynde  v.  Hough,  27  Barb. 
(N.  Y.)  415;  Hunt  v.  Beeson,  18 
Ind.  380;  Taylor  v.  Sutton,  15  Ga. 
103;  Page  v.  Palmer,  48  N.  H.  385; 
Weir  V.  Simmons,  55  Wis.  637. 

i->  Hammond  v.  R.  Co.,  15  S.  C. 
10;  Jackson  v.  Harrison,  17  John. 66. 

iG  Board  of  Education  v.  Trus- 
tees, 63  111.  204;  Hoyt  v.  Kimball, 
49  N.  H.  322;  Wheeler  v.  Dascomb, 
3  Cush.  (Mass.)  285;  Thornton  v. 
Trammell,  39  Ga.  202;  Packard  v. 
Ames,  16  Gray  (Mass.)  327. 

17  Shattuck  V.  Hastings.  99  Mass. 
23;  Vail  v.  R.  R.  Co.,  106  N.  Y.  283; 
Spect  V.  Gregg,  51  Cal.  198;  Ale- 
many  V.  Daly,  36  Cal.  90. 


CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS.         o2'3 

lion  be  pcifoi'iiicd,  dcstiovcd  or  harrcd  by  the  sfntntc  of  limi- 
lati(Jiis  or  by  ('stop])!'].''^ 

Conditions  are  further  classed  as  expressed  and  implied,  the 
former  bein<(  those  which  are  declared  in  express  terms  in  the 
deed  creatinfj;  the  estate,  and  the  latter  those  which  the  law 
implies,  either  from  their  being  always  understood  to  be  an- 
nexed to  certain  estates  or  as  annexed  to  estates  held  under 
certain  circumstances. 

§  441.  Continued — Operation  and  effect.  A  covenant,  con- 
dition or  stipulation  inserted  in  a  deed  delivered  to  and  ac- 
cepted by  the  grantee,  will  bind  him  to  a  due  observance  of 
the  covenant  or  performance  of  the  condition,  whenever  the 
same  directly  relates  to  the  land  embraced  in  the  conveyance,^'' 
or  is  connected  with  such  lands  and  those  immediately  adjoin- 
ing.2o  Such  agreements  may  be  collateral  to  the  conveyance, 
but  they  must  relate  to  the  premises  wiiose  title  is  transferred, 
and  an  agreement  touching  alien  lands  will  never  be  imputed 
to  the  grantee.  The  grantor  may  impose  a  restriction,  in  the 
nature  of  a  servitude  or  easement,  upon  the  land  which  he 
sells  for  the  benefit  of  the  land  he  retains;  and  if  that  servi- 
tude is  imposed  on  the  heirs  and  assigns  of  the  grantee,  and 
in  favor  of  the  heirs  and  assigns  of  the  grantor,  it  will  be  bind- 
ing upon,  and  may  be  enforced  against,  any  subsequent  pur- 
chaser of  the  property  with  notice.-^ 

So  also  the  grantor  may  impose  a  servitude  or  condition 
upon  the  land  which  he  retains  and  in  favor  of  the  land  he 
sells,  but  the  principle  is  the  same;  and  when  an  owner  sub- 
jects his  lands  to  any  servitude  and  transmits  them  to  others 
charged  with  the  same,  any  one  taking  title  to  such  lands  with 
notice  of  the  conditions  or  restrictions  affecting  their  use  or 
the  method  of  their  enjoyment  takes  subject  to  the  burdens 
thus  imposed^  and,  as  standing  in  the  place  of  his  grantor,  is 

18  M.  &  C.  R.  R.  Co.  V.  Neighbors,  580;  Dismukes  v.  Halpern.  47  Ark. 

51  Miss.  412;  Osgood  v.  Abbott,  58  317. 

Me.  73;    Hubbard   v.   Hubbard,  97  20  Burbank  v.  Pillsbury.  48  N.  H. 

Mass.   188;    Guild   v.  Richards,  16  475;    Bronson  v.  Coffin,   108  Mass. 

Gray     (Mass.)     309;     Chalker    v.  175;    Hazlett   v.    Sinclair,    76   Ind. 

Chalker,   1   Conn.    79;    Willard   v.  488;  Walsh  v.  Barton,  24  Ohio  St. 

Henry,  2  N.  H.  120.  48;    Kellogg  v.   Robinson,     6     Vt. 

ii'Kimpton  v.  Walker.  9  Vt.  191;  276. 

Clark    V.    Martin,   49    Pa.    St.    289;  ••;i  Whitney  v.  R.  R.  Co.,  11  Gray 

Stines    v.    Dorman,    25    Ohio    St.  (Mass.)    359;    Clark  v.  Martin.  49 


624         CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

boimd  to  do  or  forbear  from  doing  whatever  Lis  grantor  should 
do  or  should  not  do.22 

§  442.  Construction  of  conditions.  In  the  construction  of 
conditions,  limitations  and  restrictions  there  cannot  be  said 
to  be  any  technical  rule,  but  courts  are  bound  in  every  case  to 
ascertain  the  Intent  of  the  parties  and  give  effect  to  the  in- 
strument accordingly.23  A  special  intent  will  not  usually  pre- 
vail over  a  general  intent;  but,  it  seems,  whenever  limita- 
tions, carefully  stated,  and  a  general  expression  are  applied  in 
the  same  instrument  to  the  same  subject-matter,  the  former 
are  made  the  superior  and  controlling  words  of  the  deed-^-* 

§  443.  Continued — Conditions  in  avoidance.  The  rule  is 
well  established  that  a  condition  to  avoid  an  estate  must  be 
taken  strictly.  It  cannot  be  extended  beyond  its  express  terms, 
and  a  party  who  insists  upon  the  forfeiture  of  an  estate  under 
a  condition  of  his  own  creation  must  bring  himself  clearly 
within  the  letter.^s  No  act  not  embraced  within  the  language 
can  be  said  to  be  within  the  spirit  of  the  condition,  nor  will 
such  act  be  substituted  for  the  act  prohibited  by  its  terms.^^ 
In  every  case  the  language  should  be  strictly  construed,  and 
the  limitation  or  condition  have  only  a  literal  interpretation. 

§  444.  Continued — When  construed  as  covenants.  The  tend- 
ency of  modern  times  is  to  relax  the  stricter  rules  which 
raise  and  govern  conditions  and  to  construe  recitals  which 
limit  or  restrict  the  use  of  property  as  covenants  rather  than 
conditions.    Covenants,  like  conditions,  do  not  depend  upon 

Pa.  St.  289;  Thurston  v.  Minke,  32  for  a  term  of  years  prior  to  a  cer- 

Md.  487.  tain  day  named  therein,  and  the 

--  Trustees   v.   Lynch,   70   N.   Y.  grantee  afterwards  and  within  the 

440.  limited  period  executed  to  a  party 

23  Hoyt  v.  Kimball,  49  N.  H.  322;  a  lease  of  the  premises  for  ninety- 
Packard  v.  Ames,  16  Gray  (Mass.)  nine  years,  and  also,  at  the  same 
327.  time,  gave  to  him  a  bond  for  the 

24  Bailey  v.  Close,  37  Conn.  408.  conveyance  of  the  property  in  fee 

25  Jackson  v.  Silvernail,  15  Johns,  after  the  expiration  of  the  limita- 
(N.  Y.)  278;  Snyder  v.  Hough,  27  tion,  and  received  from  the  pur- 
Barb.  (N.  Y.)  415;  Emerson  v.  chaser  the  price  therefor,  held, 
Simpson,  43  N.  H.  473;  Voris  v.  that  these  acts  of  the  grantee  were 
Renshaw,  49  111.  425.  not  prohibited    by    the    condition, 

^fi  Where  the  grantor  in  a  deed  and  hence  worked  no  forfeiture  of 

annexed  to  the  grant  a  condition  the  estate.     Voris  v.  Renshaw,  49 

that  the   gr.antee  should   not  con-  111.  425. 
vey  the   property  except  by  lease 


CONDITIONS,    LIMITATIONS    Aimj    rtESTRICTIONS.         .52.") 

precise  or  technical  words ;^^  and  whatever  shows  the  intent  of 
the  parties  to  bind  themselves  to  the  performance  of  a  stipu- 
lation may  be  deemed  a  covenant  without  i'eji;ard  to  the  form 
of  expression.^*^  A  covenant  or  condition  may  be  created  by 
the  same  words.-" 

It  is  a  well-established  rule  that  the  recitals  in  a  deed  will 
never  be  permitted  to  control  the  operation  of  the  instrument 
if  the  plain  intent  would  be  thereby  defeated;  and,  further, 
that  courts  are  bound  in  every  case  to  ascertain  the  intent  of 
an  instrument  and  <;ive  it  effect  accordingly.  Hence  if  a  con- 
dition is  plainly  manifest  it  must  prevail;  but  the  authorities 
are  united  in  declaring  that  a  recital  only  operates  as  a  condi- 
tion when  it  is  apparent  from  the  whole  scope  of  the  instru- 
ment that  it  was  intended  to  so  operate.  But  if  it  be  doubtful 
whether  a  clause  in  a  deed  be  a  covenant  or  a  condition,  courts 
will  incline  against  the  latter  construction  ;2'J  and  if  the  lan- 
guage employed  is  not  in  form  either  a  covenant  or  condition, 
the  clause  will  be  construed  as  a  covenant  rather  than  a  con- 
dition. 

A  conditional  stipulation  expressing  an  agreement,  as  ''it 
is  expressly  agreed  and  understood,"  will  usually,  although 
operating  as  a  restriction,  produce  also  a  covenant  personal 
to  the  grantee  if  there  be  no  clause  uniting  his  heirs,^!  or  run- 
ning with  the  land  and  binding  the  successors,  according  to 
the  spirit  of  the  agreement.^-  Notwithstanding  that  the  re- 
striction may  be  in  the  most  positive  and  emphatic  terms,  if 
it  clearly  imports  an  agreement  and  does  not  provide  for  re- 
entry or  forfeiture,  it  is  always  to  be  construed  as  a  covenant 

2T  Newcomb  v.  Presbrey,  8  Met.  Rep.   175;    Parmelee  v.  R'y  Co..   2 

(Mass.)    406;    Davis   v.    Lyman.    6  Seld.  (N.  Y.)  80;  Chapin  v.  Harris, 

Conn.    252;    Meyers    v.    Burns,    33  8  Allen  (Mass.)  594. 

Barb.  (N.  Y.)  401.  'if  Gallagher  v.   Herbert,  117   111. 

28  Taylor  v.   Preston,  79   Pa.   St.  160;  Hoyt  v.  Kimball,  49  N.  H.  322; 

436;  Hallet  v.  Wylle,  3  Johns.   (N.  Thornton  v.  Trammell,  39  Ga.  202. 

Y.)    44;     Bull    v.    Fallett.    5    Cow.  -ti  Skinner  v.  Shepard.  130  Mass. 

(N.  Y.)  170.    But  where  a  covenant  180;  Norris  v.  Laberee,  58  Me.  260; 

in  form  is  followed  by  a  clause  of  Emerson    v.    Simpson,    43    N.    H. 

forfeiture    it    will    be   construed    a  475. 

condition.    Moore  v.  Pitts.  53  N.  Y.  •'-  St.    Andrew's    Church    Appeal. 

85;   Gray  v.  Blanchard.     8     Pick.  67   Pa.   St.   512;    Trustees,   etc.   v. 

(Mass.)   284.  Cowen.  4  Paige.  Ch.  (N.  Y.)  510. 

2»  Hartung   v.    Witte,    18    N.    \V. 


526        CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

and  never  as  a  condition.^^  On  the  other  hand,  although  the 
stipnhition  is  a  covenant  in  form,  yet  if  followed  by  a  clause 
of  forfeiture  it  will  be  construed  a  condition.^-* 

§  445.  Creation  of  conditions.  A  condition  must  be  distin- 
guished from  a  merely  restrictive  stipulation;  yet,  as  has  been 
said,  this  is  not  always  an  easy  matter  to  do.  The  recital  may 
in  effect  produce  a  condition  or  a  covenant,  or  it  may  amount 
to  no  more  than  a  prohibitory  stipulation,  which,  although 
partaking  somewhat  of  the  nature  of  each  of  the  two  former 
classes,  operates  in  a  manner  different  from  either.^s 

By  long  and  almost  immemorial  usage  and  the  repeated 
adjudications  of  courts,  a  condition  may  be  raised  by  the 
employment  of  that  term,  the  usual  formula  being:  ''provided 
always,  and  this  deed  is  upon  the  express  condition."^^  These 
terms,  "provided  always,"  "upon  the  express  condition,"  etc., 
have  frequently  been  held  to  create  an  estate  upon  condition,^^ 
unless  the  context  or  something  in  other  parts  of  the  deed 
tends  to  negative  this  idea.  So,  also,  the  words  "if,"  '*if  it 
shall  so  happen,"  or  other  equivalent  expressions,  when  relat- 
ing to  conditions  depending  on  contingencies,  have  been  taken 
and  held  to  operate  in  the  same  manner.  These  expressions 
are  given  as  examples  by  the  elementary  w'riters,^^  and  are 
also  in  common  use  by  the  profession.^^  The  language  em- 
ployed, however,  except  as  it  may  tend  to  disclose  intention, 
is  comparatively  of  little  moment;  for  the  intention  of  the  par- 
ties when  apparent   will  alw^ays   control   technical   terms,^** 

33  Anthony  v.  Stevens,  46  Ga.  being  such  as  has  a  qualification 
241;  Fuller  v.  Arms,  45  Vt.  400;  subjoined  thereto,  and  which  must 
Thornton  v.  Trammell,  39  Ga.  202;  be  determined  whenever  the  quali- 
Leach  v.  Leach,  4  Ind.  628.  fication  annexed  to  it  is  at  an  end. 

34  Moore  v.  Pitts,  53  N.  Y.  85;  It  is  a  fee  because  it  may  possibly 
Gray  v.  Blanchard,  8  Pick.  (Mass.)  endure  forever;  and  it  is  qualified 
284;  Ayer  v.  Emery,  14  Allen  because  its  duration  depends  upon 
(Mass.)  69;  Hoyt  v.  Ketcham,  54  collateral  circumstances  which 
Conn.  60.  qualify  and   debase  the   purity  of 

ss  Conditional  limitations  are  not  the  donation.     "Wiggins  Ferry  Co. 

included  in  the  scope  of  these  para-  v.  O.  &  M.  R'y  Co.,  94  111.  83. 

graphs,  and  will  be  treated  sepa-  334   Kent,    Com.,    122;    2    Wash, 

rately.  Real  Prop.,  3. 

3'-' See    4    Kent's    Com.,    122;      2  39  Hammond  v.  R'y  Co.,  15  S.  C. 

Wash.  Real  Prop.,  3.  10;  Sohier  v.  Church,  109  Mass.  1; 

3v  The  estate  so  granted  is  some-  Hooper  v.  Cummings.  45  Me.  359. 

times  called  a  base  or  qualified  fee,  40  Callins  v.  Lavalle,  44  Vt.  230; 


CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS.         527 

greater  regard  being  had  to  the  manifest  intention  than  to 
an}'  particular  words  which  may  have  been  used  in  expressing 
it;  and  when  it  is  ch'ar  that  teclinical  words  liave  been  used 
to  express  ideas  different  from  their  technical  signification, 
courts  are  ever  inclined  to  construe  them  according  to  such 
intent.-*! 

The  use  of  technical  words  which  in  themselves  import  con- 
ditions will  ordinarily  be  held  to  create  the  same,  for  teclinical 
words  are  presumed  to  be  used  in  their  legal  sense  unless  there 
is  a  plain  intent  to  the  contrary ;^2  ^viiile  the  addition  of  a 
clause  of  re-entry  or  forfeiture  unmistakably  discloses  the 
nature  of  the  recital.^^  But  this  clause  is  by  no  means  neces- 
sary if  the  character  of  the  condition  is  otherwise  estab- 
lished, for  forfeiture  follows  a  condition  subsecjuent  upon  its 
breach  by  operation  of  law;"*^  yet  the  presence  or  absence  of 
this  clause  has  an  important  bearing  upon  the  question  wheth- 
er the  recital  constitutes  a  condition  or  a  covenant  or  simply  a 
stipulation,  and  may  be  considered  with  other  matters  in  so 
determining.'*^ 

It  may  be  stated,  therefore,  that  no  particular  form  of  words 
is  necessary  to  create  a  condition,  and  that  the  only  essential 
feature  is  that  the  intention  so  to  create  shall  be  clearly  ex- 
pressed in  some  words  importing  ex  vi  termini  that  the  vesting 
or  continuance  of  the  estate  or  interest  is  to  depend  upon  a 
contingency  provided  for,^^ 

The  provision  for  re-entry  is  the  distinctive  characteristic  of 
an  estate  upon  condition;  and  when  it  is  found  that  by  any 
form  of  expression  the  grantor  has  reserved  the  right  upon 

Episcopal   City   Mission   v.    Apple-  lowed   that  effect  when  the  inten- 

ton,  117  Mass.  326;   Krantz  v.  Me-  tion  of  the  grantor,  as  manifested 

Knight,  51  Pa.  St.  232;  Saunders  v.  by  the  whole  deed,    is    otherwise. 

Hanes,  44  N.  Y.  253.  Episcopal  City  Mission  v.  Appleton, 

41  R.  R.  Co.  V.  Beal,  47  Cal.  151;  117  Mass.  326. 

Churchill  v.  Reamer,  8  Bush  (Ky.)  «  Emerson  v.  Simpson,  43  N.  H. 

256.  475. 

•«2  Butler  V.  Huestis,  68  111.  594;  •»<  Jackson  v.  Allen,  3  Cow.    ( N. 

France's  Estate,     75   Pa.  St.     220.  Y.)    220;     Gray    v.    Blanchard.     8 

While  the  words  "upon  condition,"  Pick.    (Mass.)   284;   Osgood  v.  Ab- 

in  a  conveyance  of  land,   are  apt  bott,  58  Me.  73. 

words  to   create  a   condition,  any  4'  Hartung   v.    Witte,   18    N.    W. 

breach   of   which    will    forfeit   the  Rep.  175. 

estate,  yet  they  are  not  to  be  al-  ^^  Lyon  v.  Hersey,  103  N.  Y.  264. 


528         CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

tlie  haj)])ouin^  of  any  event,  to  re-enter  and  thereby  revest  in 
himself  his  former  estate,  it  may  be  construed  as  such.'*'^ 

Where  certain  clauses  clearly  constitute  conditions,  other 
stipulations,  not  put  in  the  form  of  conditions,  will  generally 
be  taken  as  merel^^  constituting  covenants;'*^  and  the  rule  is 
that,  in  deciding  between  covenants  and  conditions  in  doubtful 
cases,  the  writing  shall  be  held  to  be  a  covenant,  upon  the 
theory  that  a  condition,  as  tending  to  destroy  the  estate,  would 
be  less  favorable  to  the  grantee.  But  where  the  terms  are  dis- 
tinctly and  plainly  terms  of  condition,  where  the  whole  pro- 
vision precisely  satisfies  the  requirements  of  the  definition,  and 
where  the  transaction  has  nothing  in  its  nature  to  create  any 
incongruity,  there  is  no  room  for  refinement  and  no  ground 
for  refusing  to  assign  to  the  subject  its  predetermined  legal 
character.^*^  The  law  attaches  to  the  act  and  ascribes  to  it  a 
definite  significance;  and  the  parties  cannot  be  heard  to  say, 
where  there  is  neither  imposition,  fraud  nor  mistake,  that,  al- 
though they  deliberately  made  a.  condition  and  nothing  but  a 
condition,  they  yet  meant  that  it  should  be  exactly  as  a  cove- 
nants*^ 

§  446.  Forfeiture — Revesting  of  estate.  A  mere  breach  of 
any  or  all  of  the  conditions  upon  which  an  estate  has  been 
conveyed  will  not  have  the  effect  to  revest  the  title  in  the 
grantor.51  He  has  an  option  to  declare  a  forfeiture,  but  this 
right  he  may  waive  either  by  express  act  or  passive  acquies- 
cence.s2  ^he  authorities  are  unanimous  in  declaring  that  to 
render  the  breach  effectual  and  revest  an  estate  forfeited  as  for 
conditions  broken,  requires  some  action  on  the  part  of  the 
grantor.  If  he  is  not  in  possession  he  must  make  an  entry, 
or  by  some  act  equivalent  thereto  assert  a  continual  claim, 

47  Atty-Gen'l   v.    Merrimack   Co.,  "^i  M.  &  C.  R.  R.  Co.  v.  Neighbors, 

14  Gray  (Mass.)  586.  51  Miss.  412;  Kenner  v.  American 

4s  St.  Louis  V.  Ferry  Co.,  88  Mo.  Contract  Co.,   9    Busli    (Ky.)    202; 

615.  Guild    V.    Richards,    82    Mass.    (16 

49  Merrit   v.    Harris,     102     Mass.  Gray)    309;    Osgood   v.   Abbott,   58 

326;   Allen  v.  Florence,  16  Johns.  Me.  73. 

(N.  Y.)  47;  Blanchard  v.  R.  R.  Co.,  •'',2  Coon  v.  Brickett.  2  N.  H.  163. 

31  Mich.  51;  Wheeler  v.  Walker,  2  The  waiver  of  a  forfeiture  may  be 

Conn.    196;    Mead    v.    Ballard,      7  inferred   from   the   failure   of  the 

Wall.  (U.  S.)  290.  party  entitled  to  the  estate  to  re- 

T'O  Blanchard    v.    R.    R.    Co.,    31  enter  or  assert  some  claim  in  a  rea- 

Mich.  43.  sonable  time  after  the  termination 


CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS.         529 

manifest iug  a  determination  to  take  advantage  of  the  breach  ;'^3 
if  in  possession,  he  must  in  some  manner  evidence  an  intent 
to  hold  possession  by  reason  of  the  breach/'^  lentil  this  has 
been  done  the  grantee  holds  his  estate,  liabh'  only  to  be  de- 
feated, but  not  actually  determined  by  a  forfeiture/'"'' 

A  simple  entry  ujton  the  land,  made  with  intent  to  forfeit 
the  grant,  accompanied  by  some  unequivocal  act  or  statement, 
will  be  sufficient  to  work  a  forfeiture;'"''^  but,  as  the  intention 
to  forfeit  is  the  vital  and  controlling  principle,  such  intention 
must  in  every  case  afiirmatively  appear/''^  An  actual  entry, 
however,  does  not  seem  to  be  essential;  for  the  breach  of  con- 
dition has  the  etfect  to  create  a  right  of  action  which  the 
grantor,  even  without  an  actual  entry  or  a  previous  demand, 
can  enforce  by  a  suit  for  the  land.''^ 

§  447.  Who  may  take  advantage  of  condition  broken.  By 
the  rules  of  (he  common  law,  which  discourages  maintenance 
and  litigation,  nothing  that  lies  in  action,  entry  or  re-entry, 
can  be  granted  over;  and  while  this  rule  has  in  many  instances 
been  greatly  relaxed  and  changed,  it  still  holds  good  with  re- 
gard to  conditions,  and  no  grantee  or  assignee  of  a  reversion 
can  take  advantage  of  a  re-entry  by  force  of  a  condition 
broken.  The  privilege  is  confined  to  the  grantor  and  his  heirs, 
who  alone  may  take  steps  to  forfeit  the  estate;  and  if  they 
neglect  or  refuse  so  to  do,  the  title  remains  in  the  grantee  for 
all  j)ractical  purposes  unimpaired.^^ 

of   the   estate;      and     particularly  broken,     and     there     notified    the 

where  the  grantee  is  permitted  to  grantee  that  possession  would   be 

make  valuable  improvements  after  taken  for  the  breaking  of  a  con- 

the  condition  is  broken.    Kenner  v.  dition  in  the  deed,  held,  that  these 

American  Contract  Co.,     9     Bush  acts  were  a  sufficient  entry  to  re- 

(Ky.)   202.  vest  the  estate  in  her.     Jenks    v. 

53  M.  &  C.  R.  R.  Co.  V.  Neighbors,  Walton,  64  Me.  97. 

51  Miss.  412;  Osgood  v.  Abbott.  58  st  Thus,  it  was  held  that  the  sim- 

Me.  73.  pie  act  of  turning  cattle  upon  land 

^*  Hubbard  v.  Hubbard,  97  Mass.  while  unimproved  and  uninclosed. 

188.  and  using  the  land  while  in  that 

55  Stone  V.  Ellis,  9  Cush.  (Mass.)  state  as  a  means  of  access  to  ad- 

95:    Memphis,   etc.,    R.    R.    Co.    v.  joining  land,  was  not  such  an  entry 

Neighbors,  51  Miss.  412;    Spofford  for  breach  of  condition  as  would 

V.  True.  33  Me.  283;  Spect  V.  Gregg,  revest  the  estate    in    the    grantor. 

51  Cal.  198.  Guild  v.  Richards.  82  Mass.  309. 

.'.o  Where   a  grantor  in   a   condi-  5s  R^eh  v.  Rock  Island,  97  U.  S. 

tional    deed    went    upon    the    land  693. 

with  two  witnesses  for  condition  5o  Smith  v.  Brannan,  13  Cal.  107; 

34 


530         CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

§  448.  Who  may  perform.  Generally,  any  one  may  perform 
a  condition  who  Las  an  interest  in  it,  or  in  the  land  whereto  it 
is  annexed;''*^  and  when  a  condition  is  once  performed,  unless 
it  is  one  which  recjuires  coutinuous  performance,  it  is  tlience- 
forth  entirely  gone,  and  the  thing  to  which  it  was  before  an- 
nexed becomes  absolute  and  wholly  unconditional.^^ 

§  449.  Prevention  of  performance.  The  rule  at  law  is  that 
if  a  condition  subsequent  be  possible  at  the  time  of  making  it, 
and  becomes  afterwards  impossible  to  be  complied  with  by 
the  act  of  God,  or  the  law,  or  the  grantor,  the  estate,  once 
vested,  is  not  thereby  divested,  but  becomes  absolute.^^  g^^ 
equity  maA^  apply  this  rule  in  the  interests  of  justice  merely 
to  the  extent  of  enlarging  the  time  for  performance,  where  it 
has  been  hindered  at  the  time  when  it  should  have  been  exe- 
cuted.'^s 

If  performance  is  prevented  by  the  act  of  the  grantor  the 
grantee  is  excused.*^* 

§  450.  Time  of  performance.  If  no  time  is  mentioned  for 
the  performance  of  the  condition  the  general  rules  relating 
to  agreements  would  seem  to  properly  apply,  and,  notwith- 
standing that  it  has  been  intimated  the  grantee  under  such 
circumstances  might  have  his  whole  life-time,^^  it  would  ap- 
pear that  the  act  should  be  performed  within  a  reasonable 
time.^^  The  circumstances  of  the  grant  and  the  situation  of 
the  parties  will,  in  most  instances,  be  a  sufficient  guide  to  point 
out  what  is  a  reasonable  time.^^  Where  compliance  with  the 
condition  requires  a  continuous  performance,  and  such  per- 
formance is  discontinued,  the  same  must  be  resumed  within 

Gray  V.  Blanchard,  8  Pick.  (Mass.)  64  Houghton  v.   Steele,     58     Cal. 

284;    Merritt  v.  Harris,  102   Mass.  421;  Jones  v.  R.  R.  Co.,  14  W.  Va. 

328;   Hooper  v.  Cummings,  45  Me.  514;    Ellthart  Car  Works  v.  Ellis, 

359;   Norris  v.  Milner,  20  Ga.  563;  113  Ind.  215. 

Towne  v.  Bowers,  81  Mo.  491.  65  Hamilton  v.  Elliott,  5  Serg.  & 

CO  Joslyn  v.  Parlin,  54  Vt.  670.  R.  (Pa.)  383. 

61  Vermot  v.  Gospel  Society,  2  es  Hayden  v.  Stoughton,  5  Pick. 
Paine  (C.  Ct.)  545.  (Mass.)    528;    Ross  v.  Tremain,   2 

62  Hughes  V.  Edwards,  9  Wheat.  Met.   (Mass.)  495. 

(U.  S.)   489;   Merrill  v.  Emory,  10  67  Land   was  devised   to  a  town 

Pick.    (Mass.)    507;    Gadberry    v.  for   the  purpose     of     building     a 

Shepard,  27  Miss.  203.  schoolhouse,  and     upon     condition 

«■!  Davis  v.  Gray,  16  Wall.  (U.  S.)  subsequent  that  it  should  be  built 

203,  upon  a  certain  spot.     Held,     that 


CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS.         531 

a  reasonable  time  in  order  to  prevent  a  forfeiture  of  the  es- 
tate.«8 

Where  a  ^^rant  is  made  for  a  specific  purpose,  not  creating  a 
teclmical  condition,  as  wlicre  no  words  of  forfeiture  or  re- 
entry are  used,  it  would  seem  that  where  the  grant  is  uncon- 
ditional as  to  tile  lime  when  the  land  granted  must  be  used, 
and  without  limit  as  to  the  time  when  tlie  use  must  begin,  it 
cannot  be  forfeited  for  non-user,  for  the  parties  not  having 
annexed  any  conditions  to  the  grant  in  this  r(^sj)ect  at  the  time 
it  was  made,  courts  will  not  undertake  to  supply  them  by 
implication.''^ 

§  451.  Conditions  in  restraint  of  alienation.  By  the  iron 
rule  of  the  feudal  law  the  grantee  of  a  feud  possessed  no  power 
of  alienation,  and  upon  his  death  the  land  reverted  to  his 
superior  lord.  This  rigorous  rule  in  time  became  modified  so 
as  to  permit  an  inheritance  by  the  grantee's  heirs,  but  with 
the  right  of  reversion  on  the  extinction  of  his  blood;  and  as 
there  always  remained  in  the  grantor  a  possibility  of  a  re- 
verter, this  was  considered  such  an  interest  in  the  land  as 
entitled  him  to  restrict  the  power  of  alienation.  And  so  the 
law  remained  until  the  enactment  of  what  is  known  as  the 
statute  quia  eniplores.'^^  This  statute  cut  off  the  possibility  of 
reverter  by  giving  to  ever}-  freeman  the  right  to  sell  his  lands 
at  his  ow^n  pleasure,  so  that  his  feoffee  should  hold  them  of 
the  chief  lord  by  the  same  service  and  customs  as  the  feoffor 
held  them  before.  The  possibility  of  reverter  having  thus 
been  destroyed,  the  grantor's  interest  in  the  land  ceased,  and 
he  was  no  longer  able  to  prohibit  the  right  of  alienation. 

this  condition  was  broken  by  a  neg-  church   lot  to   remain   vacant   for 

lect   for    twenty   years   to   comply  more  than  three  years.    Held,  that 

with    the    condition.      Hayden     v.  the  condition  was  broken,  although 

Stoughton,  5  Pick.  (Mass.)  528.  the     proprietors    voted     that    the 

tiJ^  Adams  v.   Copper  Co.,  7  Fed.  church  lot  should  be  reserved  for 

Rep.  634.  A  lot  of  land  was  granted  the  erection  of  a  church  whenever 

on  condition  that  it  should  be  held  they    might    deem     it     expedient, 

for  the  support    of    the    minister  Austin   v.    Cambridgeport    Parish, 

preaching  in  a  certain  church,  or  21  Pick.  (Mass.)  215. 

in  any  church  subsequently  to  be  "o  Raley  v.  Umatilla  County,  15 

erected  upon   the  same  site;     the  Ore.  172. 

proprietors  of  the  church  took  it  to  Enacted  in  1290,  18  Edw.   I., 

down  and  erected  a  new  one  upon  ch.  1. 
a  different  lot,  and  allowed     the 


532         CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

Since  the  enactment  of  the  statute  quia  emptor es,  therefore, 
no  conditions  or  restrictions  in  a  conveyance  of  the  fee  which 
prohibits  tlie  alienation  of  hind  have  been  allowed  to  have  any 
effect,  and,  being-  repugnant  to  the  estate  granted,  are  consid- 
ered void  upon  that  ground  alone."^!  This  principle  is  well 
establislied  in  the  jurisprudence  of  every  xVmerican  state,  and 
has  on  several  occasions  been  re-affirmed  by  the  supreme 
court  of  the  United  States. 

But  while  no  dissent  has  been  expressed  to  the  rule  in  a 
general  sense,  an  entire  harmony  does  not  prevail  on  the  sub- 
ject of  partial  restraints — that  is,  restraints  against  alienation 
for  a  limited  time,  or  to  certain  persons,  or  to  any  but  certain 
persons;  and  while  some  cases  strenuously  insist  that  the 
power  of  disposal  cannot  be  arrested  for  a  single  day ,"^2  others 
insist  that  such  restrictions,  if  reasonable,  are  valid  and  of 
binding  effectJ^  This  latter  class  of  cases  follow  mainly  the 
modern  English  precedents,  and  are  available,  if  at  all,  only 
in  case  of  gift  or  devise;  but  it  is  diflScult  to  perceive,  on 
principle,  why  a  partial  restraint  is  not  just  as  incompatible 
with  the  idea  of  complete  ownership  as  a  general  restraint. 

To  render  a  restraint  of  this  character  effective  it  is  always 
necessary  that  there  be  a  reversion  or  limitation  over,  for 
otherwise  there  would  be  no  one  to  enforce  obedience,  and  the 
prohibition  would  be  wiiolly  nugatory.^*  So,  too,  the  intention 
to  create  a  condition  must  be  apparent;  the  words  "upon  con- 
dition," or  other  words  of  equivalent  meaning,  should  appear, 
or  there  should  be  a  clause  providing  for  forfeiture  and  re- 
entry, these  being  the  usual  indications  of  an  intent  to  create 

71  For  a  very  elaborate  and  ex-  '2  Mandlebaum  v.  McDonnell,  29 

haustive   discussion   of   this   ques-  Mich.  78;  and  see  Oxley  v.  Lane,  35 

tion,   see   Mandlebaum'  v.    McDon-  N.   Y.   347;    Anderson  v.   Cary,   36 

nell,  29  Mich.  78.     The  same  sub-  Ohio  St.  506. 

ject  is  very  fully  considered  also  in  "3  Cowell  v.  Springs  Co.,  100  U.  S. 

De  Peyster  v.  Michael,  6  N.  Y.  467.  55;  Hunt  v.  Wright,  47  N.  H.  396; 

See,  also,  McCullough  v.  Gilmore,  Langdon  v.  Ingram's  Guardian,  28 

11  Pa.  St.  370;   Bank  v.  Davis,  21  Ind.  360;    Simmonds  v.  Simmonds, 

Pick.    (Mass.)    42;      McCleary     v.  3  Met.   (Mass.)   562;  and  see  Gray 

Ellis,  54  Iowa  311;  Norris  v.  Hens-  v.  Blanchard,  8  Pick.  (Mass.)  284; 

ley,  27  Cal.  439;  Anderson  v.  Carey,  Dougal  v.  Fryer,  3  Mo.  40. 

36  Ohio  St.  506;  Doebler's  Appeal,  7»  Pace  v.  Pace,  73  N.  C.  119;  Til- 

64  Pa.  St.  623;  Smith  v.  Clark,  10  linghast  v.  Bradford,  5  R.  I.  205, 
Md.  186. 


CONDITIONS.    LIMITATIONS    AND    RESTRICTIONS.  533 

a  couditiou  «ub.se(]iKUt.  If  none  of  these  ciicuinstances  are 
present,  the  mere  fact  that  the  deed  is  made  in  whole  or  in 
part  upon  the  tousideration  that  the  j^rantee  shall  not  for  a 
certain  period  sell  or  convey  the  property,  would  not  be  suffi- 
cient to  create  a  condition. 

§  452.  Continued — With  respect  to  persons.  While  the 
general  principle  thai  the  conveyance  of  an  estate  in  fee- 
simple  imports  absolute  ownership  in  the  grantee,  and  that 
any  restriction  or  condition  imposed  inconsistent  with  or  re- 
pugnant to  the  estate  so  granted  is  void,  seems  to  have  been 
adojited  as  a  universal  rule  of  law,  it  has  nevertheless  been 
held  in  England  from  very  early  times  that  partial  restraints 
may  properly  be  annexed  to  a  grant  of  the  fee,  and  that  the 
grantee  may  not  disregard  such  partial  restraint  under  pen- 
alty of  forfeiture  of  his  estate.  This  doctrine  has  also  been 
recognized  in  some  of  the  American  states,  and  in  a  number 
of  instances  it  has  been  held  that  a  condition  not  to  alien  to  a 
particular  person  or  persons  is  valid,''^^  though  it  would  seem 
that  a  condition  not  to  alien  except  to  particular  persons 
would  be  inoperative  and  void.'"  From  these  authorities  the 
rule  would  seem  to  be  that  a  condition  is  valid  if  it  permits 
alienation  to  all  the  world  with  the  exception  of  selected  indi- 
viduals or  classes,  but  is  invalid  if  it  allows  of  alienation  only 
to  selected  individuals  or  classes."^  The  authorities,  how- 
ever, are  not  agreed  even  upon  these  propositions,  and  the  re- 
ports abound  in  many  conflicting  decisions. 

§  453.  Continued — With  respect  to  time.  Restraints  with 
resi)ect  to  time  have  in  several  instances  been  held  good  and 
the  conditions  sustained,"^  provided  the  restriction  is  limited 
to  a  "reasonable  period  ;"^^  but  the  weight  of  authority  would 
seem  to  be  against  the  validity  of  restraints  upon  alienation, 
however  limited  in  time.'^*^ 

75  Cowell  V.  Col.  Springs  Co.,  100  ts  Stewart  v.    Brady.      3     Bush 

U.  S.  55;  Gray  V.  Blanchard.  8  Pick.  (Ky.)  623;  Dougal  v.  Fryer.  3  Mo. 

(Mass.)  284;  Jackson  v.  Schutz,  18  40;    Langdon    v.    Ingram,    28    Ind. 

Johns.    (N.  Y.)    174;   Jauretche  v.  360. 

Proctor,  48  Pa.  St.  466.  '••>  Gray  v.  Blanchard,  8  Pick.  284. 

TO  Anderson  v.  Cary,  36  Ohio  St.  so  Roosevelt  v.  Thurman,  1  Johns. 

506;  McCullough  v.  Gilmore.  11  Pa.  Ch.  (N.  Y.)  220;  Oxley  v.  Lane.  35 

St.  370.  N.  Y.  340;   Mandlebaum  v.  McDon- 

''  See  Gray,  Restraints  on  Alien-  nell,  29  Mich.  78;  Anderson  v.  Cary, 

ation,  22,  36  Ohio  St,  506. 


534         CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

But  while  the  rule  prohibiting  restraints  on  alienation  is 
well  established  it  is  not  without  apparent  exceptions,  and  one 
of  the  most  marked  of  these  exceptions  occurs  where  the  grant 
is  for  a  charitable  use.  In  such  a  grant  the  rule  against  per- 
petuities will  not  apply  and  the  donor  may  impose  any  condi- 
tion which  shall  prevent  the  diversion  of  the  trust  estate  from 
the  uses  upon  which  it  was  given,  even  though  he  thereby  ren- 
ders the  land  inalienable.^i  This  result  follows,  however,  only 
when  the  grant  or  trust  is  made  by  way  of  gift.  The  trust, 
in  such  case,  being  the  creation  of  the  donor,  he  may  impose 
upon  it  such  character  and  qualifications  as  he  may  see  fit, 
and  equity  will  protect  and  enforce  same.  But  when  the  grant 
is  made  upon  adequate  consideration,  as  where  conveyance 
is  made  to  a  religious  society  for  a  fair  price  paid,  notwith- 
standing that  the  habendum  of  the  deed  be  to  hold  for  specific 
uses  with  a  restriction  against  alienation,  the  inseparable 
incidents  of  a  fee  will  attach  and  the  condition  will  be  void.^^ 

§  454.  Continued — With  respect  to  prescribed  and  prohib- 
ited uses.  A  grant  of  laud  for  a  prescribed  use  does  not  nec- 
essarily imply  a  condition,  although  such  grants  are  usually 
coupled  with  conditions,  and  not  infrequently  with  stipula- 
tions for  re-entry  and  forfeiture.  But  the  rule  is  fundamental 
that  an  estate  upon  condition  cannot  be  created  by  deed,  ex- 
cept where  the  terms  of  the  grant  will  admit  of  no  other  rea- 
sonable interpretation;  therefore,  merely  reciting  in  a  deed 
made  upon  an  expressed  consideration,  however  small,  that 
the  grantee  is  to  do  certain  things  or  that  the  property  is  to 
be  used  for  certain  specified  purposes,  is  not  an  estate  upon 
condition,  not  being  in  terms  upon  condition,  nor  containing  a 
clause  of  re-entry  or  forfeiture.^^  Numerous  cases  may  be 
found  in  the  books  where  this  doctrine  has  been  recognized 
and  applied;  and  while  courts  will  usually  lend  their  aid  to 
effectuate  and  carry  out  expressed  intentions,  yet  as  the  rule 

81  Perin  V.  Cary,  24  How.  (U.S.)  use  of  school  purposes  only  was 
465;  Jones  v.  Habersham,  107  U.  S.  held  not  to  create  a  condition;  Car- 
174;  Mills  v.  Davision,  54  N.  J.  Eq.  ter  v.  Branson,  79  Ind.  14,  where 
659.  property  was  deeded  to  the  use  of 

82  Magie  v.  Church,  13  N.  J.  Eq.  Society  of  Friends  as  long  as 
77.  needed;  and  see  Packard  v.  Ames, 

s'' Taylor  v.  Binford,  37  Ohio  St.  16  Gray  (Mass.)  327;  M.  E.  Church 
?62,   where   a   conveyance   for  the    v.  Public  Ground  Co.,  103  Pa.  St. 


CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS.         53.j 

iu  I't'j^ard  to  lortVitures  for  bri'iicli  of  condiliou  is  ouc  of  the 
teclmical  rules  of  the  common  law  which  has  uever  been 
favored  by  the  courts  of  this  country,  and  which  has  always 
been  strictly  construed  whenever  invoked,  unless  it  clearly 
appears  that  the  prescribed  use  was  intended  to  be  a  condi- 
tion subseciuent  created  by  apt  words,  courts  will  refuse  to 
entertain  jurisdiction  for  forfeiture  or  re-entry,  and  in  like 
manner  will  refuse  to  supply  conditions  by  implication  when 
they  were  not  annexed  at  the  time  the  *,'rant  was  made.''* 

Where,  however,  the  deed  provides  that  the  land  shall  be 
forfeited  and  revert  if  used  for  other  puri)0ses  than  those 
specified,  a  condition  is  thereby  created,^''  and  upon  i)roof 
of  breach  the  j^rantor  may  re-enter  and  repossess  the  land,**** 

§  455.  Continued — Intoxicants.  The  current  of  modern  au- 
thority sustains  the  proposition  that,  where  a  deed  conveys 
land  in  fee,  but  upon  the  express  condition  that  neither  the 
grantee  nor  his  heirs  or  assigns  shall  ever  sell  or  permit  to  be 
sold  any  intoxicating  liquors  upon  the  premises,  and  that  the 
grant  shall  be  forfeited  and  the  land  revert  back  to  the 
grantor  whenever  such  condition  shall  be  broken,  the  estate 
so  convej'ed  is  an  estate  upon  condition  subsequent;  that 
the  condition  is  valid,  and  until  broken  runs  with  the  laud, 
and  is  binding  not  only  upon  the  grantee  himself  but  also  upon 
his  assigns,  and  that  the  land  may  be  recovered  back  by  the 
grantor  from  the  grantee  or  from  any  assignee  of  his  who  may 
commit  a  breach  of  said  condition.*^" 

The  general  theory  upon  which  restrictions  of  this  character 
are  sustained  seems  to  be,  that  a  grantor  in  disjtosing  of  his 
property  has  a  right  to  imj)ose  such  conditions  as  shall  pre- 
vent its  use  by  the  grantee  iu  a  manner  calculated  to  diminish 
the  value  of  his  remaining  land  or  impair  its  eligibility  for 
other  purposes.     It  would  follow,  therefore,  that  the  grantor 

608;  Brown  v.  Caldwell,  23  W.  Va.  -^fi  phunb  v.  Tubbs.  41  N.  Y.  442; 

187;  Thornton  v.  Trammell.  39  Ga.  Collins    v.    Marcy,    25    Conn.    242; 

202.  Gray  v.  Blanchard.  8  Pick.  (Mass.) 

S4  Raley  v.  Umatilla    County,    15  284;  Sperry  v.  Pound,  5  Ohio  189. 

Ore,  172;  and  see  Emerson  v.  Simp-  »<"  O'Brien  v.  Wetherell,  14  Kan, 

son,  43  N.  H.  475;     Gadberry     v.  616;  Plumb  v.  Tubbs,  41  N.  Y.  442; 

Sheppard.    27    Miss.    203;      Wood-  Cowell  v.  Colorado  Springs  Co.,  100 

worth  V,  Payne.  74  N.  Y.  196.  U.  S.  55;  Collins  v.  Marcy.  25  Conn. 

«•'•  Hoyt  V.  Ketcham,  54  Conn.  60;  242;    Sioux  City,  etc..  R.  R.  Co.  v. 

Gilbert  v.  Peteler,  38  N.  Y.  \65,  Singer.    49    Minn.    301;    Chippewa 


53G        CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

should  preserve  a  consistency  in  disposing  of  tlie  remaining 
land,  and  that  all  deeds  of  contiguous  or  adjacent  property 
should  contain  the  same  restrictions.  Hence,  if  a  deed  with 
restrictive  conditions  has  been  made  the  grantor  should  not  bv' 
permitted  to  afterwards  sell  an  adjoining  parcel  without  re- 
strictions and  thereby  diminish  the  value  or  impair  the  eligi- 
bility of  his  former  grantee's  property  by  insisting  upon  the 
observance  of  the  restriction,  and  it  has  been  held,  that  should 
such  deeds  be  made,  even  though  the  restriction  may  have 
been  omitted  from  such  subsequent  deeds  by  mistake,  their 
efifect  would  be  to  create  a  waiver  of  the  right  of  forfeiture  as 
for  condition  broken.^^ 

§  456.  Conditional  limitations.  An  estate  upon  condition 
differs  from  what  is  known  as  a  conditional  limitation,  or,  as 
it  is  sometimes  called,  a  determinable  fee.  The  estate  in  either 
case  is  conditional,  but  the  distinction  is  that  the  former,  while 
liable  to  defeat,  yet  requires  some  act  to  be  done  by  the  per- 
son who  has  the  right  to  avail  himself  of  the  condition,  and 
is  not  in  fact  determined  until  there  has  been  an  entry  or 
some  other  equivalent  demonstration;  the  latter,  on  the  con- 
trary, is  determined  by  operation  of  law  without  any  act  by 
any  person,  and  ceases  to  exist  upon  the  happening  of  the 
event  by  which  its  limitation  is  measured.^''  In  the  former  the 
reservation  can  only  be  made  to  the  grantor  or  his  heirs,  who 
alone  can  take  advantage  of  a  breach  of  the  condition,^^  while 
a  stranger  may  have  the  benefit  of  a  limitation.^^ 

§  457.  Restrictive  stipulations.  There  is  another  class  of 
recitals,  which,  although  partaking  of  the  nature  and  employ- 
ing much  the  same  language  as  both  covenants  and  conditions, 
has  yet  been  accorded  an  operation  and  effect  different  from 
either.  Neither  legislative  nor  judicial  learning  has  yet  given 
them  a  distinctive  name,  and  perhaps  they  cannot  be  better 

Lumber  Co.  v.  Tremper,  75  Mich.  58  Me.  73;    Wheeler  v.  Walker,  2 

36;    Bad   River  Lumbering  Co    v.  Conn.  196. 

Kaiser,  82  Wis.  166.                           <  fo  Smith  v.  Brannan,  13  Cal.  107; 

88  Jenks  V.  Pawloski,  98  Mich.  Gray  v.  Blanchard,  8  Pick.  (Mass.) 
110.  284;   Hooper  v.  Cummings,  45  Me. 

89  Brattle  St.  Church  v.  Grant,  3  359. 

Gray   (Mass.)   146;   Miller  v.  Levi,       si  Southard  v.  R.  R.  Co.,  26  N.J.L. 
44  N.  Y.  489;  Henderson  v.  Hunter,    1;  Owen  v.  Field,  102  Mass.  90. 
59  Pa.  St.  340;   Osgood  v.  Abbott, 


CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS.         537 

described  than  as  .slipulalujus  operatiiij^  by  way  ol"  restricliou. 
In  some  instances  such  recitals  have  the  eilect  of  real  or  per- 
sonal covenants,  but  more  freciuently  they  are  taken  as  part 
of  the  description  of  tlie  estate  granted,  and  which  preclude 
the  grantee  and  those  claiming  under  him  from  doing  any  act 
in  violation  of  the  restrictions.-'-  This  is  particularly  true 
where  the  recital  creates  rights  in  the  nature  of  easements  for 
the  benefit  of  the  land  retained."'-^  In  such  recitals  the  use 
of  the  technical  words  "conditioned,"  "provided,  however," 
etc.,  have  no  other  or  further  eilect  than  to  produce  a  restric- 
tion whicli  those  who  take  the  estate  are  bound  to  observe. 
No  forfeiture  follows  upon  the  violation  or  breach  of  the  stip- 
ulation; nor  will  the  grantor  ordinarily  have  a  right  of  action, 
as  for  covenant  broken,  but  equity  will  restrain  the  violation 
or  enforce  the  performance  of  the  stipulation  according  to  its 
terms."^  This  procedure  is  most  in  accordance  with  the  sjjirit 
of  the  times,  and  is  manifestl}'  the  true  remedy  for  the  breach 
of  even  an  acknowledged  condition  subsecpient.  The  general 
effect  of  this  class  of  stipulations,  together  with  their  practical 
application,  will  be  treated  in  the  subsequent  paragraphs  in 
connection  with  the  other  phases  of  the  subject. 

55  458.  Restrictions  on  use.  As  has  been  shown,  so  long  as 
the  benelicial  enjoyment  of  an  estate  conveyed  is  not  mate- 
rially impaired,  an}^  reasonable  condition  prescribing  the  mode 
of  its  use  will  be  valid.  A  covenant  in  restraint  of  trade  is 
valid  if  it  imposes  no  restriction  upon  one  party  which  is  not 
beneficial  to  the  other,  and  was  induced  by  a  consideration 
which  made  it  reasonable  for  the  parties  to  enter  into;  and 
the  covenant  will  be  enforced  if  a  disregard  thereof  by  the 
covenantor  will  work  injury  to  the  covenantee."^  And  so, 
where  a  grantee  binds  himself  by  a  covenant  in  his  deed  limit- 
ing the  use  of  land  purchased  in  a  particular  manner  so  as  not 
to  interfere  with  the  trade  or  business  of  the  grantor,  the  cov- 
enant is  valid  and  binding  not  only  as  between  the  parties  but 

"2  Fuller   V.    Arms.   45    Vt.   400;  "^  Trustees  v.  Cowen.  4  Paige.  Ch. 

Warren  v.  Meyer.  22  Iowa  351.  (N.  Y.)  510;  Ayling  v.  Kramer.  133 

»•'  Dorr  V.   Harrahan,   101   Mass.  Mass.  12. 

531;  Phoenix  Ins.  Co.  v.  Continental  o''  Chappel  v.  Brockway.  21  Wenrl. 

Ins.  Co..  14  Abb.  Pr.  (N.  Y.)   N.  S.  (N.  Y.)  157:  Parker  v.  NiRhtineri'o. 

26G;      Seymour     v.     McDonald.     4  (5   Allen    (Mass.)    341;    Burhank  v. 

Sandf.  Ch.  (N.  Y.)  502.  Pillsbury.  48  N.  H.  475. 


^38        CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

liit'ir  privies  as  well,  uud  may  be  eul'orced  against  a  grantee 
of  the  covenantor  taking  title  with  notice  of  the  restriction; 
and  this  although  the  assignees  of  the  covenantor  are  not 
mentioned  or  referred  to.'^" 

Nor  does  it  seem  necessary,  in  order  to  charge  third  parties, 
that  a  covenant  of  this  character  should  be  one  technically 
running  with  the  land;  it  is  suliicient  that  subsequent  pur- 
chasers have  notice  of  it.  It  is  said  that  this  doctrine  and  the 
cases  which  support  it  proceed  upon  the  principle  of  prevent- 
ing a  party  having  knowledge  of  the  just  rights  of  another 
from  defeating  such  rights,  and  not  upon  the  idea  that  the 
engagements  enforced  create  easements  or  are  of  a  nature  to 
run  with  the  land;  and  in  the  exercise  of  its  ample  powers  a 
court  of  equity  may  impose  the  burden  of  a  covenant  relating 
to  lands  on  the  alienee  of  such  lands,  on  a  principle  altogether 
aside  from  the  existence  of  an  easement  or  the  capacity  of 
such  covenant  to  adhere  to  the  title.^"^ 

One  of  the  difficulties  connected  with  this  branch  of  the 
subject  is  the  indefinite  character  frequently  given  to  restric- 
tions of  this  kind.  Thus,  it  is  common  to  stipulate  that  the 
premises  shall  not  be  used  for  any  ''nauseous"  or  ''offensive" 
trade,  or  in  a  manner  calculated  to  "disturb  the  quiet  of  the 
neighborhood."  This  leaves  a  wide  margin  for  construction 
and  has  resulted  in  a  number  of  seemingly  contradictory  de- 
cisions.^^ 

§  459.  Building  restrictions.  An  important  class  of  the 
stipulations  now  under  consideration  is  found  in  the  clauses 

96  Trustees  v.  Lynch,  70  N.  Y.  440.  other   without   covenants    on    the 

As  where  N.  was  the  owner  of  cer-  part  of  the  latter,  who,  however, 

tain  lands  containing  deposits  of  had  noticebeforetakinghis  deed  of 

building  sand,  and  the  sale  of  the  the   covenant  in   the   deed   to   his 

sand  constituted  his  only  business,  grantor.    Said  third  person  opened 

S.  offered  to  purchase  a  small  par-  a   pit  on   his  land  and  sold  sand 

eel  of  the  land,  but  N.  declined  to  therefrom.     Held,   that  an   action 

sell  on  the  ground   that  it  would  was  maintainable  to  restrain  such 

interfere    with    his     business.     S.  sale.     Hodge  v.   Sloan,   107  N.   Y. 

agreed    to    purchase,     covenanting  244. 

not  to  sell  any  sand  from  off  the  97  Hodge  v.  Sloan,  107  N.  Y.  244. 

parcel.    N.  thereupon  sold  and  con-  ss  See  Tobey  v.  Moore,  130  Mass. 

veyed,  his  deed  containing  such  a  448;  Dorr  v.  Harrahan,  101  Mass. 

covenant  on  the  part  of  the  grantee.  531. 
S.  subsequently  conveyed    to    an- 


CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS.         MO 

often  inserted  in  deedK  to  hcciiic  iiiiiroriuilv  in  strc<-i  fronts, 
a  pleasing  correspondence  in  the  aicliitect  iiic  of  rontiguous 
buildings,  or  to  secure  liglit,  ventilation  oi-  unobst lucled  views 
of  a  neigliborliood.  Sucli  clauses  liave  a  wide  lange  of  oj)ei-a- 
tion  and  a  great  diversity  of  cliaradei-,  luil  all  conu'  as  a  rule 
under  the  generic  term  "building  restrictions."  They  are  de- 
signed ordinarily  to  i)revent  such  use  of  the  j)reTnises  by  the 
grantee  and  those  claiming  under  him  as  might  diniinisli  tlic 
value  of  the  residue  of  the  land  belonging  to  the  gi-antor  (tr 
impair  its  eligibility  for  particular  i)urposes,  and  in  this  re- 
spect they  partake  somewhat  of  the  character  of  a  reservation 
annexed  to  and  forming  a  part  of  the  description  of  the  estate. 
In  framing  such  clauses  provision  is  rarely  made  either  for 
forfeiture  or  re-entrj,  and  even  where  such  provision  is  made, 
its  operation  will  usualh'  be  denied  where  other  ade(]uate  rem- 
edies exist. 

The  exact  effect  to  be  given  to  this  class  of  stipulations  is 
not  well  determined,  but  it  seems  clear  that  they  do  not  fall 
within  the  true  definition  of  a  condition,  which,  on  breach, 
carries  with  it  the  right  of  reverter.  They  have  been  held  to 
constitute  neither  a  condition  precedent  nor  subsecpient,  nor  a 
covenant  that  the  grantee  would  abide  by  their  terms;  but  to 
be  rather  a  part  of  the  description  of  the  estate,  and  to  pre- 
clude those  claiming  under  the  grantee  from  making  erections 
on  the  land  in  violation  of  the  restrictions.^ 

The  general  tendency  of  the  decided  cases  seems  to  lean 
toward  the  adoi)tion  of  a  strict  rule  of  construction  of  all 
clauses  of  this  character,  and  many  instances  may  be  found  in 
the  books  where  apparently  small  and  trivial  violations  of  im- 
posed restrictions  lunc  been  rigidly  corrected,-     Indeed,  the 

1  So    held    with    reference    to    a  cupied  by"  the  grantor.     But  this 

clause  in  a  deed  of  warranty  con-  decision     seems     to     have     been 

veying  land  by  metes  and  bounds,  reached    largely   on   the    principle 

"conditioned   that   no   building  or  that  the   obstruction   of   the   view 

erection  is  ever  to  be  made  on  said  from  the  grantor's  dwelling-house 

land  except  a  dwelling-house,  and  was  a   proper   subject  of   reserva- 

out-buildings  for  the  same;     .     .     .  tion,  and  such  effect  is  given  to  the 

also  that  no  building     is     to     be  stipulation.    Fuller  v.  Arms,  45  Vt. 

erected  on  said   land   which  shall  400. 

extend    more    than     twenty     feet  -  Thus,  under  a  stipulation  that 

southerly  of  the  main  body  of  the  a  passage-way  shall  be  kept  open 

dwelling-house  now  owned  and  oc-  and  maintained  of  a  certain  width, 


540         CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

question  of  injury  or  damage  does  not  enter  into  the  enforce- 
ment of  a  building  restriction;  it  is  enough  that  there  has 
been  a  violation  of  the  terms  of  the  agreement,  and  courts  will 
grant  relief  against  same  without  inquiring  whether  the  erec- 
tion will  be  injurious  or  beneficial,  on  the  ground  that  a  cove- 
nantee has  a  right  to  have  the  actual  enjoyment  of  property 
as  stipulated  for  by  him.^ 

Building  restrictions  are  usually  inserted  at  the  instance  of 
the  grantor,  and,  in  effect,  serve  to  impose  a  condition  in  the 
nature  of  a  servitude  or  easement  upon  the  land  that  is  sold 
for  the  benefit  of  the  land  which  the  grantor  still  retains;  but 
the  condition  may  be  and  sometimes  is  imposed  upon  the  land 
that  is  retained  and  in  favor  of  the  land  that  is  sold;  and  where 
an  owner  creates  a  servitude  of  this  character  on  his  own 
lands,  binding  by  express  words  his  heirs  and  assigns,  such 
restriction  is  in  the  nature  of  a  contract,  and  may  be  enforced 
against  any  assignee  with  notice.* 

§  460.  Prohibited  employments.  Conditions  imposing  lim- 
ited restrictions  upon  the  use  of  granted  property  or  the 
method  of  its  enjoyment,  however  much  they  may  allect  the 
value  or  the  nature  of  the  estate,  are  generally  upheld  and 
enforced  where  they  do  not  tend  to  limit  or  destroy  its  alien- 
able or  inheritable  character.  This  is  particularly  true  with 
reference  to  the  employment  of  the  premises  for  purposes 
obnoxious  to  the  senses  or  to  health.  In  this  way  slaughter- 
houses, soap  factories,  distilleries,  livery-stables,  tanneries  and 
machine-shops  have  in  a  multitude  of  instances  been  excluded 
from  particular  localities,  which,  thus  freed  from  unpleasant 
sights,  noxious  vapors  or  disturbing  noises,  have  become  de- 
bay  windows  may  not  be  erected  140  Mass.  76.  And  see  Buck  v. 
over  the  passage-way.  Attorney-  Adams,  45  N.  J.  Eq.  552. 
Gen.  V.  Williams,  140  Mass.  329.  3  Cornish  v.  Wiessman.  56  N.  J. 
So,  also,  land  was  conveyed  with  Eq.  610;  Atty-Gen.  v.  Algonquin 
the  restriction  that  no  building  Club,  153  Mass.  447. 
should  be  erected  "within  twenty  *  Thus,  a  covenant  with  the 
feet  of  C.  street."  The  front  wall  grantee,  "his  heirs  and  assigns"  in 
of  a  building  erected  was  twenty  a  deed  of  conveyance,  binding  the 
feet  from  C.  street,  but  a  part  of  grantors,  "their  heirs  and  assigns," 
the  roof  and  a  dormer  window  not  to  build  any  improvement  in- 
were  less  than  twenty  feet  from  ferior  to  certain  specified  qualifica- 
the  street.  Held,  a  violation  of  tions  on  any  of  certain  lots  retained 
the  restriction.    Bagnall  v.  Davies,    by  the  grantors,  constitutes  an  in- 


CONDITIONS.    LIMITATIONS    AND    RESTRICTIONS.         541 

sirable  as  i)lacc'H  for  residence  of  families.''  Thai  such  a  pur- 
pose is  a  lej^ilimate  one,  and  may  be  carried  out  consistently 
with  the  rules  of  law  by  reasonable  and  proper  covenants, 
conditions  or  restrictions,  cannot  be  doubted.^ 

Purchasers  may  acquire  by  their  deeds  tlie  right  to  insist 
upon  the  ()bs<n'vance  of  a  covenant  or  stipulation  in  the  nature 
of  a  covenant,  not  to  permit  the  erection  or  maintenance  of 
any  noxious,  unwholesome,  offensive  or  dangerous  establish- 
ment, calling  or  trade,  where  such  covenants  in  the  deeds  for 
different  lots  are  nevertheh^ss  made  for  the  mutual  benefit 
and  protection  of  all  the  purchasers  of  lands  in  a  designated 
block  or  neighborhood^  So,  also,  while  a  j)revious  purchaser 
from  the  original  owner  of  the  block  or  neighborhood  can  not 
sue  at  law  upon  the  covenant  in  the  deed  to  a  subsequent 
purchaser,  yet  equity  may  protect  him  by  injunction  against 
the  carrying  on  of  any  noxious  business  or  trade  upon  the  lot 
of  such  subsequent  purchaser.^ 

The  usual  remedy  for  the  violation  of  covenants  of  this 
character  is  an  injunction  to  keep  within  the  terms  of  the 
agreement;  and  where  the  circumstances  show  no  reasonable 
ground  for  the  violation,  a  court  of  equity  will  compel  the 
offending  party  to  comply  with  the  obligation  which  was  at- 
tached to  the  property  by  the  terms  of  the  grant.  It  must 
fretjuently  happen,  however,  that  the  changed  circumstances 
of  the  property  and  its  surroundings  would  render  it  inequi- 
table to  deprive  a  jjurchaser  of  the  privilege  of  conforming  his 
property  to  the  character  of  the  neighborhood  so  as  to  use  it 
to  greater  advantage  and  in  no  respect  to  the  detriment  of 
his  grantor.  Restrictions  on  use,  or  prohibitions  of  specitied 
enii)loynients,  are  generally  made  for  the  better  Improvement 
of  lands  and  to  secure  permanent  values,  yet  the  character  of 
entire  neighborhoods  will  sometimes  change  in  such  a  manner 
that  the  very  object  of  the  restriction  can  only  be  attained  by 

curabrance  on  such  lots  which   is  Ohio    189;    Gray   v.    Blanchard,    8 

binding  on   a   subsequent    grantee  Pick.  (Mass.)  284. 

thereof      with    notice.      Halle     v.  «  Clark  v.  Martin,  49  Pa.  St.  289; 

Newbold,     14     Atl.     Rep.      (Md.)  Whitney  v.  Railway  Co.,  11  Gray 

6G2.  (Mass.)  359. 

•'i  Cowell  V.  Colorado  Spring  Co.,  "  Barrow  v.  Richard,  8  Paige  (N. 

100  U.  S.  55;   Plumb  v.  Tubbs.  41  Y.)    ."^Sl;      Columbia      College      v. 

N.    Y.    442;    Collins    v.    Marcy.    2.")  Lynch,  70  N.  Y.  452. 

Conn.    242;    Sperry    v.    Pound,      5  "^  Barrow  v.  Richard,  8  Paige  (N. 

Y.)  351. 


542         CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

its  violation.  If,  for  any  reason,  therefore,  not  referable  to  the 
purchaser,  an  enforcement  of  the  covenant  would  defeat  the 
ends  orij^inally  contemplated  by  the  parties,  a  court  of  equity 
may  well  refuse  to  interfere,  or  if  in  fact  the  condition  of  the 
property  by  which  the  premises  are  surrounded  has  been  so 
altered  that  the  conditions  and  restrictions  of  the  covenant  are 
no  lonjijer  applicable  to  the  existing  state  of  things.  And  so, 
notwithstanding  the  contract  may  have  been  fair  and  just 
when  made,  if  subsequent  events  have  made  performance  by 
the  purchaser  so  onerous  that  its  enforcement  would  impose 
great  hardship  ujjon  him  with  little  or  no  benefit  to  the 
grantor,  equitj'  will  deny  its  relief  to  the  covenantee  in  the 
enforcement  of  the  stipulation.^ 

§  461.  Enforcement  of  restrictions.  A  stipulation  by  way 
of  restriction,  not  amounting  to  a  condition,  if  not  in  restraint 
of  trade  or  otherwise  illegal,  may  be  and  usually  is  enforced 
by  injunction,^ ^  and  this  remedy  may  be  had  not  only  against 
an  immediate  grantee  but  against  all  subsequent  purchasers 
with  notice^^;  and  the  further  fact  that  a  penalty  or  forfeiture 
is  imposed  for  doing  a  prohibited  act  is  no  obstacle  to  the 
interposition  of  equity  by  injunction.^^ 

It  is  a  further  rule  that  such  relief  may  be  granted  although 
no  actual  pecuniary  damage  may  have  been  sustained  or  is  to 
be  expected.13  Nor  is  the  remedy  confined  to  the  grantor  and 
his  heirs,  but  it  may  be  resorted  to  by  his  assigns  as  well.^^ 
And  generally,  when  restrictions  inserted  in  the  deed  of  a 
particular  lot  are  part  of  a  general  scheme  for  the  benefit  and 
improvement  of  all  the  lands  included  in  a  larger  tract,  a 
grantee  of  any  portion  of  the  lands  may,  in  a  proper  case,  en- 
force them  against  his  neighbor.!^ 

9  Columbia  College  v.  Thacher,  87  i*  A  condition  that  the  front  line 
N.  Y.  311;  and  see  Willard  v.  Tay-  of  the  building  to  be  erected  on  the 
loe,  8  Wall.  (U.  S.)  557.  granted  lot  shall  be  placed  ten  feet 

10  Tallmadge  v.  Bank,  26  N.  Y.  back  from  the  street  and  parallel 
110;  Morris  v.  Tuskaloosa  Mfg.  Co.,  thereto,  held,  a  valid  restriction 
83  Ala.  565.  capable      of      enforcement    by    a 

11  Webb  V.  Robbins,  77  Ala.  176;  grantee  of  another  lot  from  the 
Payson  v.  Burnham,  141  Mass.  547;  common  grantor.  Hamlen  v.  Wer- 
Gilbert  v.  Peteler,  38  N.  Y.  165.  ner,  144  Mass.  396. 

12  Watrous  v.  Allen,  57  Mich.  362.  is  Whitney  v.  Union  Ry.  Co.,  11 

13  Atty-Gen.  v.  Algonquin  Club,  Gray  (Mass.)  359;  Payson  v.  Burn- 
153  Mass.  447.  ham,  141  Mass.  547. 


CONDITIONS,    LIMITATIONS    AND    RESTKICTIONS.         543 

§462.  Avoidance  of  restrictions.  While  tlu-  law  will  coin- 
pol  i)arti('K  to  adhere  to  the  contractH  they  have  voluntarily 
cntertMl  into  and  j,'rant  IIh  aid  to  securo  their  enforcement,  yet 
with  respect  to  aj^refmcntH  restricting^  the  use  of  lands  the 
rule  is  subject  to  some  modification.  As  has  been  shown,  the 
condition  and  charactei-  of  the  surrounding  lands  have  much 
to  do  witli  its  jiractical  ajjplication.  Thus,  where  there  has 
been  such  a  chanjje  in  the  character  of  the  neijjhborhood  as 
to  defeat  the  object  and  })urpose  of  the  ajjreement,  and  to 
render  it  inecpiitable  to  deprive  the  owner  of  the  privilege 
of  conforming;  his  property  to  the  altered  circumstances,  relief 
will  not  usually  be  granted  against  a  violation.  As,  where 
lands  have  been  sold  with  a  proviso  restricting  the  use  of  same 
to  that  of  private  residences  only  and  the  neighborhood  be- 
comes a  manufacturing  locality,  such  a  change  in  the  sur- 
roundings would  justify  the  refusal  of  a  court  of  equity  to  en- 
force the  coveuant.^*^  The  covenantee  might,  in  case  of 
breach,  pursue  his  remedy  at  law  for  damages,  but  a  release 
from  the  operation  of  the  restrictive  covenants  should  be 
decreed  on  the  entry  of  such  judgment,^ '^  and  if  the  complain- 
ant should  have  no  remedy  at  law,  whih^  the  prayer  for  injunc- 
tion might  be  denie^d,  the  bill  could  still  be  retained  for  the 
purpose  of  assessing  damages.^ *^ 

§  463.  Conveyances  for  support.  A  very  large  and  impor- 
tant class  of  conveyances,  conditional  in  form,  is  constituted 
by  deeds  given  in  consideration  of  the  future  support  of  the 
grantor.  The  draft  of  these  conveyances  usually  embodies 
clauses  which,  if  they  do  not  create  at  least  partake  of  the 
nature  of  conditions;  yet  the  tendency  of  the  courts  has  been 
to  divest  them  of  their  conditional  character,  particularly 
where  the  grant  is  absolute  and  the  agrennent  for  support  is 
stated  to  be  the  consideration.^^  In  such  cases  a  liberal  inter- 
pretation has  been  adopted,  in  accordance  with  established 
equity  rules;    and  unless  a  condition  is  clearly  manifest  the 

iti  Columbia   College  v.  Thacher,  '><  Jackson     v.     Stevenson,     156 

87  N.  Y.  311;  Jackson  v.  Stevenson,  Mass.  496. 

156  Mass.  496;   Page  v.  Murray,  46  's  See  Walters  v.  Bredin,  70  Pa. 

N.  J.  Eq.  325.  St.  235;  Tracy  v.  Hutchins,  36  Vt. 

17  Amerman  v.  Deane,  132  N.  Y.  225;    Berryman  v.   Schumaker,  67 

355.  Tex.  312;   Hubbard  v.  Hubbard,  97 

Mass.  188. 


54-1         CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

agreement  will  be  construed  a  covenant,  sounding  in  damages 
only.2o 

Attempt  is  sometimes  made  to  give  to  conveyances  of  this 
character  the  operation  and  effect  of  mortgages,  upon  the 
theor^^  that  any  conditional  convej'ance  given  for  the  perform- 
ance of  an  obligation  partakes  of  the  essential  character  of  a 
mortgage;  but  the  better  and  prevailing  opinion  would  seem 
to  be  that  the  rules  of  law  relating  to  mortgages  have  little  or 
no  application  to  them.  It  is  said  that  wherever  the  condi- 
tion, when  broken,  gives  rise  to  no  claim  for  damages  what- 
ever, or  to  a  claim  for  unliquidated  damages,  the  deed  is  not 
to  be  regarded  as  a  mortgage  in  equity,  but  as  a  conditional 
deed  at  common  law.  It  has  the  incidents  of  a  mortgage 
only  to  a  limited  extent;  and  the  party,  if  relieved  by  a  court 
of  equity  from  forfeiture  resulting  from  the  non-performance 
of  the  condition,  will  not  be  relieved  as  in  case  of  a  mortgage. 
It  is  not,  however,  intended  to  say  that  the  same  principle  of 
justice  which  has  led  courts  of  equity  to  establish  the  system 
of  relief  from  forfeiture  in  the  case  of  mortgages  will  not 
entitle  a  party  to  analogous  relief  in  a  case  where  the  design 
of  the  parties  is  to  make  a  conveyance  by  w^ay  of  security.  Yet, 
even  where  a  bond  or  other  writing  is  executed  contempora- 
neously with  the  conveyance,  the  grant  is  not  regarded  as  a 
mortgage,  but  effect  is  given  to  it  according  to  its  manifest 
intent,  which  is  a  conveyance  with  condition  subsequent. 

Where  the  agreement  is  construed  to  be  a  condition  subse- 
quent a  breach  of  the  same  carries  with  it  the  usual  conse- 
quences that  follow  other  conditions  subsequent,  and  entitles 
the  grantor  to  enter  and  reclaim  i)ossessiou  after  demand  of 
performance  and  a  failure  to  comply.^i  A  demand  is  usually 
an  essential  prerequisite,^^  for  mere  neglect  to  perform  the 
condition  does  not  of  itself  determine  or  defeat  the  estate.  At 
best  such  a  course  only  exposes  it  to  be  defeated  and  deter- 
mined at  the  election  of  the  grantor;  for  the  rule  is  general 
that,  to  effect  a  forfeiture,  there  must  be  a  demand  on  the  part 
of  the  persons  entitled  to  insist  upon  its  performance,  whether 
the  condition  consists  in  the  payment  of  money  or  the  per- 

20  Martin   v.   Martin,    131    Mass.  21  Lindsey    v.    Lindsey,    45    Ind. 

547;  Bortz  v.  Bortz,  48  Pa.  St.  386;  552;   Bradstreet  v.  Clark,  21  Pick. 

Harris  v.  Shaw,  13  111.  456;  Galla-  (Mass.)  389. 

her  v.  Herbert,  117  111.  160.  22  Risley  v.  McNiece,  71  Ind.  434. 


CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS.         545 

formauce  of  hoiiic  other  act,  and  a  refunal  on  the  part  of  the 
person  in  whom  the  title  is  vested.^s 

The  hmjjjiiage  used  in  such  deeds  will,  liowever,  be;  deemed 
to  have  created  a  covenant  I'alher  than  a  condition  whenever 
such  construction  is  practicable,^-*  while  the  rule  is  general 
that  a  coui-t  of  ('(piily  will  never  lend  its  aid  to  divest  an  estate 
for  a  breach  of  a  condition  subse(]nent,  but  where  a  conijx'nsa- 
tion  can  be  made  in  mone}'  will  relieve  against  such  forfeit- 
ui-es  and  compel  the  coniplainlii^'  piU'ty  to  accept  .1  reasonable 
conii)eusation  in  money.  Where,  therefore,  the  language  is 
reasonably  susceptible  of  the  construction  that  the  parties 
intended  to  secure  the  jiayment  of  stipulated  or  ascertainable 
sums  of  money  during  the  life-time  of  the  grantor,  no  condi- 
tion subsequent  will  be  deemed  to  have  been  created.  If  a 
stipulated  amount  and  the  manner  of  its  paj'ment  formed  one 
of  the  clauses  of  the  deed  the  grantor  would  be  entitled  to 
have  a  lien  declared  in  his  favor  for  the  payment  of  such 
amount  by  the  grantee  or  his  assigns,  the  record  of  the  deed 
being  notice  to  all  persons  of  the  reservation  contained 
therein  in  favor  of  the  grantor.^^ 

A  substantial  compliance  with  the  terms  of  a  contract  of 
maintenance  is  all  that  is  usually  required  of  the  grantee,-*' 
while  the  beneficiary  may  waive  performance  by  refusing  to 
receive  the  support.-^  In  such  event  the  grantee  will  be  re- 
leased from  the  obligation  of  further  performance.-^ 

§  464.  Conveyance  for  specific  use.  Aside  from  the  re- 
strictive stipulations  often  inserted  in  deeds  of  absolute  con- 
veyance, the  effect  of  which  has  been  considered,  grants  are 
often  made  upon  an  express  limitation  or  a  specific  designa- 
tion of  the  use  for  which  the  property  is  to  be  employed,  and 
either  expressly  or  by  implication  prohibiting  its  use  for  other 
purposes.  Such  conveyances  are  clearly  in  the  nature  of  con- 
ditional grants.  It  would  seem,  however,  where  property  has 
been  conveyed  for  a  specific  purpose,  that  an  hahcndum,  "to 
have  and  to  hold,''  etc.,  "for  the  use  aforesaid,"  cannot  be  con- 

23  Cory  V.  Cory,  86  Ind.  567.  26  Bresnahan   v.   Bresnahan,    46 

24Gallaher  v.   Herbert,   117   111.  Wis.  385;  Joslyn  v.  Parlin,  54  Vt. 

160.  670. 
25  Gallaher   v.    Herbert,    117    111.        27  Boone  v.  Tipton,  15  Ind.  270. 

160;    and   see   Berryman   v.   Schu-       2s  Clark  v.  Barton,  51  Ind.  165. 

maker,  67  Tex.  312. 

35 


5-lG         CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 


strued  as  a  condition  in  the  grant  or  a  limitation  of  the.es- 
tate^";  nor  will  the  addition  of  words  to  the  description  of  the 
property  indicating  the  character  of  the  use  to  which  the 
property  is  to  be  put  of  themselves  create  a  condition  subse- 
quent.30 

Where  a  conveyance  of  land  to  a  religious  or  eleemosynary 
corporation  is  absolute,  without  condition  or  reservation,  it 
creates  no  trust  beyond  that  general  duty  which  the  law  puts 
upon  a  corporation  of  using  its  property  for  the  purposes  con- 
templated in  its  creation.  That  sort  of  trust  is  not  one  which 
fastens  upon  the  land  and  inheres  in  the  title,  going  with  it 
where  it  passes,  or  restraining  alienation,  but  is  founded 
solely  upon  the  corporate  character  of  the  grantee.  The  title 
being  absolute,  the  corporation  may  transmit  it  to  its  own 
vendee.    When  this  occurs  the  proceeds  take  the  place  of  the 


29  Ward  V.  Screw  Co.,  1  Cliff.  (C. 
Ct.)  565;  Raley  v.  Umatilla  County, 
15  Ore.  172;  Farnham  v.  Thomp- 
son, 34  Minn.  330.  In  Harris  v. 
Shaw,  13  111.  456,  a  deed  was  made 
to  certain  persons  therein  named 
as  county  commissioners.  The 
consideration  was  the  location,  on 
the  land  therein  described,  of  the 
county  seat.  The  habendum  clause 
was  in  these  words:  "To  have  and 
to  hold  the  same,  and  all  and 
singular,  the  premises  above  men- 
tioned, and  every  part  and  parcel 
thereof,  with  the  appurtenances, 
unto  the  said  county  commission- 
ers for  Tazewell,  or  their  success- 
ors in  office,  and  to  the  only 
proper  use  and  behoof  of  the  said 
county  of  Tazewell,  forever."  The 
court  held  that  the  deed  conveyed 
an  absolute  fee-simple. 

■io  As  where,  in  a  conveyance  of 
land  to  a  religious  corporation,  the 
words  "for  the  purpose  of  erecting 
a  church  thereon  only"  followed 
the  description  of  the  property. 
Farnham  v.  Thompson,  34  Minn. 
330.  In  Brown  v.  Caldwell,  23  W. 
Va.  187,  a  grant  of  land  for  a  con- 


sideration to  a  trustee,  upon  trust 
that  the  trustee  "shall  at  all  times 
permit  all  the  white  religious  so- 
cieties of  Christians,  and  the  mem- 
bers of  such  societies,  to  use  the 
land  as  a  common  burying  ground, 
and  for  no  other  purpose,"  is  not  a 
grant  upon  condition.  In  City  of 
Portland  v.  Terwilliger,  16  Ore. 
465,  the  defendant  agreed  to. con- 
vey land  to  the  plaintiff,  and  plaint- 
iff agreed  that  one-fourth  of  the 
land  should  be  used  as  a  cemetery, 
and  to  expend  $400  in  building  a 
road  to  the  same;  that  the  pro- 
ceeds of  the  sales  of  burial  lots 
should  be  used  in  improving  the 
grounds;  and  that  one  burial  lot 
be  conveyed  to  each  of  the  grant- 
ors. A  deed  was  executed  pursuant 
to  the  agreement,  upon  the  "ex- 
pressed terms,  conditions  and  res- 
ervations," and  in  consideration 
that  plaintiff  perform  such  stipu- 
lations; but  no  right  of  entry  was 
reserved,  nor  was  it  provided  that 
said  estate  should  cease  on  non- 
performance. The  grantee  was  put 
in  possession.  Held,  that  such 
deed  conveyed  an  absolute  estate. 


CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS.         547 

land  aud  become  the  corporate  property,  vvhith,  if  necessary, 
a  court  may  devote  to  the  proper  uses  and  purposes  which  the 
coi'ijoration  was  framed  to  subserve,  and  to  ac(omj)lish  which 
the  property  was  bestowed.  It  is  in  no  respect  diverted  from 
the  corporation,  or  even  from  denominational  or  other  pre- 
scribed uses;  and,  so  far  as  there  is  an  element  of  trust,  a  sale 
is  consistent  witli  and  not  destructive  of  it.^^ 

§  465.  Resume.  It  would  seem,  therefore,  from  a  review  of 
the  foregoing  paragraphs,  that  there  are  three  well-defined 
species  of  conditions  now  employed  in  conveyances  in  this 
country,  all  having  for  an  object  the  same  general  purpose, 
but  in  each  instance  with  a  different  operation  and  effect,  viz.: 
(1)  Conditions  technically  so  called,  operating  as  a  defeasance 
upon  breach;  (2)  covenants  proper,  operating  as  promises 
merely,  and  giving  a  right  of  action  for  damages  in  case  of 
breach;  and  (i^)  conditional  covenants  or  stipulations,  operat- 
ing by  way  of  restriction  and  enforceable  according  to  their 
terms  on  breach  or  violation.  In  the  creation  of  each  of  these 
special  classes  the  same  operative  words  may  be  employed, 
but  their  value  and  effect  is  to  be  determined  rather  from  the 
spirit  than  the  letter  of  the  text.  They  must  be  interpreted 
in  the  light  of  the  other  provisions  of  the  deed,  while  the 
attendant  circumstances,  the  situation  of  the  parties  and  the 
state  of  the  property  conveyed  are  competent  to  aid  in  esti- 
mating their  effect.32 

yi  Matter  of  First  Presbyterian  conveyed  until  after  an  adjoining 
Church,  106  N.  Y.  251;  Rawson  v.  owner  had  ceased  to  keep  open  a 
School  Dist.,  7  Allen  (Mass.)  125.  contiguous  strip  of  land,  or  until 
In  Episcopal  City  Mission  v.  Ap-  after  such  time  as  the  chapel 
pleton,  117  Mass.  326,  land  was  should  cease  to  be  used  as  a  chapel 
conveyed  for  nominal  considera-  in  accordance  with  the  above  pro- 
tion  to  a  religious  society,  its  sue-  vision.  It  was  held  that  the  deed 
cessors  and  assigns,  "upon  and  did  not  create  a  condition,  but  that 
subject  to  the  condition"  that  the  the  grantees  got  a  title  in  fee.  In 
society  was  to  continue  to  hold,  Taylor  v.  Binford,  37  Ohio  St.  262, 
occupy,  and  improve  the  land  and  C,  being  the  owner  of  land,  con- 
chapel  standing  thereon,  for  the  veyed  it,  for  a  valuable  considera- 
support  of  religious  worship  in  tion,  to  a  township  board  of  edu- 
conformity  with  the  usage  of  the  cation,  its  successors  and  assigns, 
Protestant  Episcopal  Church,  "and  "for  the  use  of  school  purposes 
also  upon  the  further  condition"  only."  Held,  that  the  grantees  ac- 
that  no  building  should  be  erected  quired  an  absolute  fee-simple, 
upon  a  certain  portion  of  the  land       22  u.  S.  Mfg.  Co.  v.  Grass,  93  111. 


548        CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

Tlie  subject  of  conditional  covenants  and  stipulations,  al- 
though as  old  as  our  law,  would  still  seem  to  be  a  vexed  ques- 
tion in  this  country.  The  works  of  the  leading  elementary 
writers  shed  but  a  faint  and  uncertain  light  upon  it,  and  in 
some  instances  the  subject  is  expressly  avoided  or  passed  with 
briefest  niention.^^  The  utterances  of  the  courts  are  in  the 
main  characterized  by  a  cautious  timidity,  and,  except  in 
reference  to  the  broad  and  commonly  accepted  principles,  are 
discordant  and  often  contradictory.  Few  if  any  positive  rules 
can  be  laid  down  as  a  result  of  their  perusal;  but  it  is  believed 
that  the  following  deductions  and  inferences  are  supported  by 
the  volume  of  authority: 

First.  Where  the  recital  is  in  form  a  condition — as  where 
the  grant  is  expressly  made  upon  condition,  and  no  words 
other  than  the  granting  clause  control  or  modify  the  apparent 
effect  of  the  recital  or  tend  to  negative  the  idea  therein  ex- 
pressed— such  recital  should  be  construed  as  a  condition;  and 
the  estate,  under  a  deed  containing  the  same,  will  remain 
defeasible  until  the  condition  be  performed,  destroyed  or 
barred  by  the  statute  of  limitations  or  by  estoppel,^*  except 
(1)  when  the  condition  imposed  is  impossible^^;  (2)  requires 
the  performance  of  what  is  contrary  to  law  or  good  morals,^^ 
or  (3)  is  repugnant  to  the  estate  granted.^"^ 

Second.  Where  the  recital,  whatever  may  be  the  technical 
language  employed,  has  added  a  conclusion  with  a  clause  of 
re-entry;  or,  without  such  clause,  if  there  be  a  declaration  of 
defeasance  or  forfeiture,  in  case  of  the  performance  or  non- 
performance of  some  particular  act,  the  recital  should  be  con- 
strued a  condition,  for  the  breach  of  which  the  grantor  or  his 

483;    Batavia  Mfg.  Co.  v.  Newton  198;  Ruch  v.  Rock  Island,  97  U.  S. 

Wagon  Co.,  91  111.  230.  693;  Cowell  v.  Col.  Springs  Co.,  100 

;*3  See  2  Wash.  Real  Prop.,  4;     1  U.  S.  55;   Hammond  v.  R'y  Co.,  15 

Hill,   Real   Prop.,  526.     They    are  S.  C.  10. 

very   learnedly    and   logically   dis-  •''s  Jones  v.  R.  R.  Co.,  14  W.  Va. 

cussed  in  Bingham  on  Real  Prop-  514;  Hughes  v.  Edwards,  9  Wheat. 

erty,  but  mainly  with  reference  to  {U.  S.)  489. 

the  validity  of  conditions  in  abso-  ^'s  Taylor  v.  Sutton,  15  Ga.  103; 

lute  conveyances.     See  Bing.  Real  Bank   v.   Davis,   21   Pick.    (Mass.) 

Prop.,  270  et  seq.  42. 

34  Sperry  v.   Pond,   5   Ohio    389;  3?  Gadberry  v.  Sheppard,  27  Miss. 

R.  R.   Co.   V.   Neighbors,   51   Miss.  203;  De  Peyster  v.  Michael,  2  Seld. 

412;    Chapman  v.  Pingree,  67  Me.  (N.  Y.)   467. 


CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS.         519 

heirs  may  enter  and  repossess  the  hind  to  the  exclusion  of  the 
grantee,  his  heirs  or  assigns.-'^'* 

Tliird.  ^\'here  the  recital,  alt]i()ii«,'li  unaccompanied  with 
any  proviso,  the  woi'd  "condition""  not  being  mentiimed,  yet 
clearly  shows  that  the  performance  or  non-performance  of  the 
act  named  is  the  only  consideration  or  inducement  for  the 
deed,  it  should  ordinarily  be  construed  a  condition.'*''  These 
three  deductions  may  easily  be  made  from  the  precedents,  but 
in  the  opinion  of  the  writer  are  opposed  to  principle  and  in 
contlict  with  American  legal  theory,  as  are  also  the  prece- 
dents on  which  they  are  based.  Indeed,  it  is  difificult  to  under- 
stand how  any  instrument  of  conveyance  which  carries  the  full 
title  and  all  the  estate,  leaving  no  reversion  in  the  grantor,  or 
which  upon  its  face  distinctly  negatives  all  idea  of  tenure,  or 
of  the  relation  of  landlord  and  tenant,  or  of  ultimate  title  in 
others,  can  by  any  conditions  inserted  be  operative  to  defeat 
the  grant,  for  a  right  of  re-entry  always  supposes  an  estate  in 
the  grantor.^o 

Fourth.  Analogous  to  the  last  deduction  is  that  of  a  grant 
upon  the  "express  condition"  that  the  property  shall  be  used 
only  for  a  certain  and  specified  purpose,  with  a  clause  of  re- 
verter, or  of  limitation  over,  upon  breach.  In  such  cases,  and 
particularly  when  the  condition  partakes  of  the  consideration, 
the  recital  must  be  construed  a  condition.  But  this  class  of 
cases  is  essentially  different  from  those  previously  considered 
in  that  the  condition  annexed  is  a  part  of  or  defines  the  estate 
granted,  and  the  breach  does  not  in  fact  work  a  forfeiture, 
but  limits  the  estate,  which  ceases  and  determines  without 
any  entry  or  other  act  on  the  part  of  the  reversioner,  the  con- 
dition being  a  conditional  limitation,^^ 

Fifth.     Where  a  recital,  although  importing  a  condition, 

a-^Collis  V.  Marcy,  24  Conn.  242;  580;    Austin  v.  Cambridgeport,  21 

Emerson  v.  Sirason.  43  N.  H.  473;  Pick.  215. 

Thomas  v.  Ricord,     47    Me.    500;  ^"  Scott    v.     Lunt.    7     Pet.    606; 

Jackson  v.  Topping,  1  Wend.    (N.  Blight  v.  Rochester,  7  Wheat.  547; 

Y.)   388;   Van  Rensselaer  v.   Hays,  and  see  Osterhout  v.  Shoemaker,  3 

19  N.  Y.  95;    Plumb  v.  Tubbs,     41  Hill    (N.   Y.)    518;    De    Peyster   v. 

N.   Y.   442;    Adams  v.   Lindell,     5  Michael,  6  N.  Y.  467;  Van  Rensse- 

Mo.    App.    197;      Cowell     v.      Col.  laer  v.  Reed,  26  N.  Y.  558. 

Springs  Co..  3  Colo.  82.  "Hunt  v.   Beeson,   18   Ind.  380; 

30  Railroad  Co.  v.  Hood.  66  Ind.  Hooker  v.  Turnpike  Co..  12  Wend. 

(N.  Y.)  371. 


650        CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS. 

does  not  expressly  and  in  terms  declare  the  same,  and  pro- 
vides only  for  the  performance  of  some  act,  or  imposes  some 
burden  or  duty  upon  the  grantee,  but  does  not  stipulate  for  a 
re-entry  or  declare  a  forfeiture,  the  acceptance  of  the  deed  is 
in  effect  an  agreement  to  perform  the  act  or  assume  the  bur- 
den, and  the  recital  should  be  construed  a  covenant.*-  This 
deduction,  while  supported  by  precedent  and  in  consonance 
with  reason,  is  yet  subject  to  more  doubt  than  any  which 
have  preceded.  The  courts  usually  seem  to  incline  to  this 
view  under  a  choice  of  difficulties,  and  more  because  "forfeit- 
ures are  odious"  than  for  the  application  of  any  positive  prin- 
ciple. In  discussing  the  subject  there  is  a  manifest  constraint 
in  most  cases,  and  in  many  instances  the  subject  is  disposed  of 
summarily  by  the  application  of  the  familiar  doctrine  that 
where  doubt  or  ambiguity  exists  recitals  should  be  construed 
as  covenants  rather  than  conditions.  The  authorities  are  in- 
harmonious and  often  contradictory,  but  the  majority  support 
the  proposition. 

Sixth^  Where  the  recital,  although  importing  a  condition, 
provides  for  its  breach  a  penalty  or  compensation  other  than 
forfeiture,  the  recital  should  be  construed  a  covenant.'*^ 

Seventh.  Where  the  recital,  although  importing  a  condi- 
tion, has  added  no  clause  of  re-entry  or  declaration  of  defeas- 
ance, but  clearly  indicates  a  charge  upon  the  estate,  the  ac- 
ceptance of  the  deed  creates  a  duty  the  due  observance  of 
which  is  obligatory  on  the  grantee  and  those  claiming  under 
him.  The  recital  in  such  case  does  not  create  a  condition  and 
takes  effect  only  by  way  of  restriction.  Though  full  effect  is 
to  be  given  to  it  according  to  its  terms  its  operation  cannot  be 
extended  by  implication,  and  it  should  be  construed  only  as 
part  of  the  description  of  the  estate  granted.**  This  proposi- 
tion is  not  only  supported  by  ample  authority,  but  is  in  full 
harmony  with  our  theory  of  titles  and  estates.  In  its  general 
features  it  resembles  the  fifth  deduction  above  made,  and 

42  Conger  v.  R.  Co.,  15  111.  366;  Packard  v.  Ames,  16  Gray  (Mass.) 
Thornton  v.  Trammel,  39  Ga.  202;  32.5;  Fuller  v.  Arms,  45  Vt.  400; 
Randall  v.  Latham,  36  Conn.  48;  Skinner  v.  Shepard,  130  Mass.  180; 
Laberee  v.  Carleton,  53  Me.  213.  Trustees   v.    Cowen,   4   Paige,   Ch. 

43  Board  of  Ed.,  etc.,  v.  Trustees,  (N.  Y.)  510;  Dorr  v.  Harrahan,  101 
etc.,  63  III.  204;  Hartung  v.  Witte,  Mass.  31;  Seymour  v.  McDonald,  4 
18  N.  W.  Rep.  175.  Sandf.  Ch.  (N.  Y.)  502. 

44  Warren  v.  Meyer,  22  Iowa  351; 


CONDITIONS,    LIMITATIONS    AND    RESTRICTIONS.         .551 

somctinu's  juirtakcs  of  its  nature  in  so  far  that  the  rcstric- 
tionw  niaj  also  lake  effect  as  a  covenant.  lint  no  forfeiture 
follows  a  breach  as  a  consequence,  nor  will  any  action  ordi- 
narily result  for  damages.  The  fundamental  idea  of  condi- 
tions annexed  to  estates  is  to  restrain  the  commission  of  an 
act  on  the  one  hand  or  compel  its  performance  on  the  other; 
forfeiture  affects  neither  of  these  ends,  but  simply  provides  a 
penalty,  which,  in  a  majority  of  instances,  is  not  in  further- 
ance of  the  true  intent  as  expressed  in  the  instrument,  and, 
except  in  case  of  conditional  limitations,  is  repugnant  to  the 
grant. 

Eighth.  The  test  for  determining  between  a  condition  and 
a  covenant  is  in  the  application  of  the  language  employed.  A 
condition  can  only  be  made  by  the  grantor;  the  language 
must  be  his.  A  covenant  may  be  made  by  the  grantee,  and 
when  the  language  used  amounts  to  an  agreement  on  the  part 
of  the  grantee  a  covenant  is  raised.  A  covenant  is  a  contract; 
a  condition,  something  affixed  by  way  of  penalty  for  the  non- 
fulfillment of  the  terms  im])osed.  In  the  former  case  the 
grantee  agrees  to  do  or  refrain  from  doing  some  specific  thing; 
in  the  latter  he  makes  no  agreement,  but  takes  subject  to  the 
terms  of  the  condition.  If  the  clause  be  doubtful  it  will 
always  be  construed  a  covenant.  If  clearly  expressed,  effect 
must  be  given  to  it  according  to  its  terms.  When  forfeiture 
is  not  distinctly  expressed  or  necessarily  implied,  and  no  spe- 
cial agreement  is  stated  or  imported,  the  clause  creates  a 
charge  upon  or  incident  of  the  estate;  but  the  question  in  most 
cases  will  depend  upon  the  apparent  intention  of  the  parties 
rather  than  any  fixed  rules  of  construction,  and,  until  clearer 
ideas  of  title,  tenure  and  estate  are  made  to  prevail,  uncer- 
tainty and  doubt  will  attend  the  creation  or  attempted  crea- 
tion of  reversionary  rights  and  forfeitures,  or  the  annexation 
of  conditions  to  vested  estates. 


CHAPTER    XVIII. 


RESERVATIONS    AND    EXCEPTIONS. 


§466. 

Definatory. 

§473. 

467. 

Creation   of   reservation. 

474. 

468. 

Construction. 

475. 

469. 

Certainty  an  essential. 

470. 

Must  be  to  grantor. 

476. 

471. 

Rights  of  way. 

477. 

472. 

Right     of     flowage — Water 
privileges. 

Light  and  air. 

Use  and  occupancy. 

Reserved  rights  in  the 
soil. 

Standing  timber. 

Reserved  rights  lost  by  dis- 
use. 


§  466.  Definatory.  A  reservation  is  technically  defined  as 
the  CFeation  of  a  right  or  interest  in  land  which  had  no  prior 
existence  as  such  a  thing  or  as  part  of  a  thing  granted;^  an 
exception,  on  the  other  hand,  being  the  exclusion  of  something 
from  the  effect  or  operation  of  the  deed,  is  always  a  part  of  the 
thing  granted.2  Both  a  reservation  and  an  exception  must  be 
a  part  of  or  arise  out  of  that  which  is  granted  in  the  deed;  but 
the  difference  is  that  an  exception  is  something  taken  back  or 
out  of  the  estate  then  existing  and  clearly  granted,  while  a 
reservation  is  something  newly  created  and  issuing  out  of 
what  is  granted.3    Thus,  a  right  of  way  may  be  excepted  from 

1  A  reservation  may  extend  to  al-  10;  Shep.  Touch.  80;  Coke  Litt. 
most  any  right  or  interest  in  lands    47b. 

previously  owned  by  the  grantor.  3  Adams   v.   Morse,   51   Me.   497; 

2  To  make  a  valid  exception  the  Kister  v.  Reeser,  12  Rep.  377; 
following  matters  must  concur:  Hurd  v.  Curtis,  7  Met.  (Mass.)  94. 
(1)  The  exception  must  be  created  An  exception  frequently  proceeds 
by  apt  words;  (2)  must  be  a  part  upon  the  theory  that  it  is  a  re- 
ef the  thing  previously  described;  grant  by  the  grantee  to  the  grantor 
(3)  must  be  a  part  of  the  thing  of  the  estate  described  in  the  ex- 
only,  and  not  of  all;  (4)  must  be  of  ception;  but  this  view  is  better 
such  a  thing  as  is  severable  from  adapted  to  reservations.  See  dis- 
the  demised  premises,  and  not  of  cussions  in  the  following  cases: 
an  inseparable  incident;  (5)  must  Roberts  v.  Robertson,  53  Vt.  690; 
be  of  such  a  thing  as  he  that  ex-  Adams  v.  Morse,  51  Me.  497;  and 
cepts  may  have;  (6)  must  be  of  a  see  Marshall  v.  Trumbull,  28  Conn, 
particular  thing  out  of  a  general,  183;  Munn  v.  Worrall,  53  N.  Y. 
and  not  of  a  particular  thing  out  44;  McDaniel  v.  Johns.,  45  Miss. 
of  a  particular  thing;  and  (7)  632;  Klaer  v.  Ridgway,  86  Pa.  St. 
must  be  particularly  described  and  529;  Leavitt  v.  Towle,  8  N.  H.  96; 
set  forth.    Woodfall,  Landl.  &  Ten.  Rich  v.  Zeilsdorff,  22  Wis.  544. 

552 


RESERVATIONS    AND    EXCEPTIONS.  553 

a  grant,  or  it  may  be  reserved  at  llic  (iinc  of  an<l  in  the  inntru- 
nient  of  conveyance;  but  in  the  latter  case  it  iH  the  creation  of 
a  new  riglit  or  interest,  liotli  an  exception  and  a  rcHcrvalion 
must  be  created  by  apt  words,  those  employed  for  the  former 
bein^^  "sa\  ini,^  and  excepting,"  while  for  the  latter  the  word 
"reserving"  is  sufhcient;  but  the  terms  are  often  used  indis- 
criminately, and  fre(piently  in  conjunction,  as  "excepting  and 
reserving,''  etc.;  and  the  dilTerence  between  the  two  is  so 
obscure  in  many  cases  that  it  has  not  been  observed.^  Not- 
withstanding there  is  a  technical  distinction  between  the 
terms,  yet  where  "reserving"  is  used  with  evident  intent  to 
create  an  exception,  effect  will  be  given  to  it  in  that  sense  ;^ 
and  generally,  where  the  rule  prevails  that  the  exi)ressed  in- 
tention of  the  parties  is  the  controlling  consideration  in  con- 
struing a  deed,  the  distinction  of  the  common  law  between 
exceptions  and  reservations  is  not  material.^' 

The  two  incidents  are  so  nearly  allied  and  partake  so 
largely  of  the  same  characteristics  that  they  are  best  treated 
in  connection  with  each  other,  and  will  be  so  treated  in  the 
succeeding  paragraphs. 

§  467.  Creation  of  reservation.  Any  language  clearly  indi- 
cating intention  will  usually  be  given  etfect  as  a  reservation, 
although  many  of  the  cases  hold  that  if  a  reservation  of  inher- 
itance is  intended  specific  words  of  inheritance  must  be  em- 
ployed, and  that  a  reservation  to  the  grantor  alone  will  have 
no  greater  effect  than  to  confer  upon  him  a  life  estate."  But 
words  of  inheritance,  so  far  as  they  may  affect  the  character 
of  estates  conveyed,  are  no  longer  necessary  in  most  of  the 
states,  and  it  seems  that  where  the  use  of  such  words  have 
been  dispensed  with  by  statute  in  the  creation  of  estates  they 

4  Winthrop  v.  Fairbanks,  41  Me.  ception,    making   the    grantor   the 

307;    Bowen  v.  Conner,     6     Cush.  separate  owner  of  the  coal.     Whit- 

(Mass.)  132;  Roberts  v.  Robertson,  aker  v.  Brown,  46  Pa.  St.  197. 

53  Vt.  690.  0  Coal  Creek  Mining  Co.  v.  Heck. 

c  Sloan  V.  Lawrence  Furnace  Co.  15   Lea    (Tenn.)     497;      Heflin     v. 

29  Ohio  St.  568;   Kister  v.  Reeser,  Bingham.   56   Ala.   566;      Hart     v. 

98    Pa.   St.   1;    and   see   Barnes   v.  Stratton  Mills,  54  N.  H.  109;  Den- 

Burt,  38  Conn.  541;   State  v.  Wil-  nis  v.   Wilson,     107     Mass.     591; 

son,  42  Me.  9.    As  where  a  grantor  Whitaker  v.  Brown.  46  Pa.  St.  197. 

sold  land  reserving  the  coal  t  Ashcraft  v.  R.  R.,  126  Mass.  196. 
therein,  it  was  held  to  be  an  ex- 


654  RESERVATIONS    AND    EXCEPTIONS. 

need  not  be  used  iu  a  reservation;'*  and  in  like  manner,  if  tlie 
reservation  is  such  a  one  as  is  appurtenant  to  the  land  con- 
veyed or  to  land  yet  owned  by  the  grantor,  words  of  inherit- 
ance need  not  be  used.'-^ 

The  term  "reservation"  seems  to  have  acquired  a  wider 
significance  in  this  counti'y  than  was  accorded  to  it  in  Eng- 
land, and  also  to  have  lost  some  of  the  incidents  of  the  place 
of  its  origin.  It  would  seem  to  have  been  formerly  used 
mainly  with  respect  to  rents  or  some  provision  which  a 
grantor  made  or  reserved  to  himself  out  of  that  which  was 
granted.  At  present,  while  it  still  retains  this  character 
with  respect  to  leaseholds,  it  is  the  form  by  which  an  ease- 
ment, privilege  or  benefit  is  acquired  by  the  grantor  out  of 
the  thing  granted,  without  respect  to  the  character  of  the 
estate  conveyed. 

By  the  technical  rules  of  conveyancing  a  reservation  is 
made  in  the  clause  following  the  habendum  and  which  is 
known  as  the  reddendum.  In  formally  drawm  leases  this 
order  is  generally  observed  with  respect  to  the  reservation 
of  rent,  but  in  other  grants  it  is  not  material  where  the  pro- 
vision is  placed,  and  usually  it  follows  the  grant. 

§  468.  Construction.  Where  the  exceptions  and  reserva- 
tions of  a  deed  are  expressed  in  a  doubtful  manner,  the  gen- 
eral rule  is  that  they  shall  be  construed  most  strictly  against 
the  grantor  ;io  yet  if  the  intention  of  the  parties  can  be  fairly 
ascertained  from  the  instrument,  such  intention  will  govern  in 
its  construction.^  1  If  repugnant  to  the  grant  they  are  void;^^ 
but  generally  the  intent  of  the  parties,  as  ascertained  by  a  fair 
interpretation,  must  be  given  effect,  and  the  exception  recon- 
ciled if  reconcilement  is  possible.'^     The  usual  rules  which 

sKarmulIer   v.   Krotz,   18     Iowa  Hall  v.  Ionia,  38  Mich.  493;  Thomp- 

358.  son  V.  Gregory,  4  Johns.    (N.  Y.) 

sWinthrop  v.  Fairbanks,  41  Me.  81. 

309;   Burr  v.  Mills,  21  "Wend.   (N.  12  As  where  the  exception  is  as 

Y.)  290.  large  as  the  grant  itself,  or  where 

10  Duryea  v.  New  York,  62  N.  Y.  the  excepted  part  was  specifically 
592;  Wiley  v.  Sidorus,  41  Iowa  224;  granted — as  where  a  person  grants 
Klaer  v.  Ridgway,  86  Pa.  St.  529;  two  acres  and  then  excepts  one  of 
Gerrish  v.  Shattuck,  132  Mass.  235;  them.  Cutler  v.  Tufts,  3  Pick. 
Wyman  v.  Farrar,  35  Me.  64.  (Mass.)  272. 

11  Wiley  V.  Sidorus,  41  Iowa  224;  13  Hall  v.  Ionia,  38  Mich.  493. 


RESERVATIONS    AND    EXCEPTIONS.  555 

govern  the  construct  ion  of  ;^r;ints  apply  in  the  Hanic  niannci- 
to  exceptions  and  reservations,'' 

S  469.  Certainty  an  essential.  It  is  a  general  rule,  founded 
on  reason  and  sustained  by  authority,  that  the  same  certainty 
of  description  is  required  in  an  exception  out  of  a  grant  or  a 
reservation  made  therefrom  as  in  the  grant  itself.  The  rule 
is  not  uniform,  however,  and  in  some  states  seems  to  be 
denied.  In  the  cases  which  sustain  the  rule  the  doctrine  is 
announced  in  strong  and  generally  unqualified  terms,  which 
admit  of  no  variation,  that  where  a  deed  exeei)ts  out  of  the 
conveyance  a  specific  quantity  of  land,  say  an  acre,  and  there 
is  nothing  in  the  exception  which  serves  to  locate  it  upon  any 
particular  part  of  the  tract,  the  exception  is  void  for  uncer- 
tainty, and  the  grantee  takes  the  entire  tract.^^  But  it  seems 
that  in  some  cases  of  this  character  the  uncertainty  of  loca- 
tion may  be  cured  by  the  grantor's  election,  followed  by  acts 
in  pais.^^ 

On  the  other  hand,  there  are  cases  which  hold  that  where  a 
whole  tract  of  land  is  conveyed  by  specific  designation,  except- 
ing therefrom  an  acre,  without  describing  such  acre,  the 
exception  or  reservation  will  nevertheless  be  good,  and  the 
owner  thereof  will  become  a  tenant  in  common  with  the 
owner  of  the  balance  of  the  tract  in  the  proportion  that  the 
acre  bears  to  the  number  of  acres  in  the  whole.^"^ 

14  Where  land  was  conveyed  with  fraction  section  23,  and  northwest 

all  the  buildings  standing  thereon,  quarter  section  24,  town  10  south, 

except  the  brick  factory,  the  land  range  4  west,  except  twenty  acres, 

on   which   the   factory  stood   and  which  is  reserved   to   satisfy  the 

the    water    privilege   appurtenant  claims"   of   certain    heirs    therein 

thereto  did  not  pass  by  the  deed,  named.    And  see  Rockafeller  v.  Ar- 

Alien  V.  Scott,  21  Pick.  (Mass.)  25.  lington,  91  111.  375.     An  exception 

i"'  Mooney  v.   Cooledge,   30   Ark.  in  a  grant  of  lands  in  these  words, 

640.  "excepting   and    reserving   out    of 

10  As    where     a     deed    reserved  the  said  piece  of  land  so  much  as 

three-quarters  of  an  acre  as  a  bury-  is  necessary  for  the  use  of  a  grist- 

ing-ground  for  the  grantor's  fam-  mill  on  the  east  side  of  the  road  at 

ily,   and   was   followed    by    inter-  the  west  end  of  the  saw-mill  dam," 

ments  in  a  particular  place.    Benn  is  a  good  exception;  but  until  the 

v.  Hatcher,  81  Va.  25.  grantor  or  his  assigns  exercise  the 

1"  Gill  V.  Grand  Tower,  etc.,  Co.,  right  reserved  and  build  the  mill,  it 

92  111.  249.     In  this  case  the  Ian-  is  inoperative,  and  the  whole  prem- 

guage  of  the  deed  was,  "All  that  par-  ises  vest  in  the  grantee,  who  may 

eel    of    land    described    as    .    .    .  maintain  trespass  against  a  stran- 


556 


RESERVATIONS    AND    EXCEPTIONS. 


§  470.  Must  be  to  grantor.  It  i.s  a  rule  that  a  reservation 
must  be  to  the  grantor  and  not  to  a  stranger,i*^  but  it  is  not  the 
less  made  to  him  simply  because  others  can  derive  advantage 
from  it;  and  it  will  be  considered  as  made  to  him  when  valu- 
able rights  are  secured  to  him,  although  it  may  be  perceived 
that  others  will  also  be  benefited  by  it.^^ 

But  while  a  reservation  will  not  give  title  to  a  stranger,  it 
may  operate,  when  so  intended  by  the  parties,  as  an  exception 
from  the  thing  granted,  and  as  notice  to  the  grantee  of  ad- 
verse claims  as  to  the  thing  excepted  or  ''reserved."-^  It  must 
not  be  understood,  however,  that  the  exception  in  such  case 
gives  title  to  such  third  person,  for  no  one  not  a  party  to  the 
deed  can  acquire  any  rights  or  interest  in  the  land  by  virtue 
of  any  exception  therein  contained  more  than  a  reservation; 
yet  where  third  parties  already  possess  rights  adverse  to  those 
conveyed,  an  exception  may  properly  be  made  for  the  purpose 
of  relieving  the  grantor  from  liability  on  his  covenants.  The 
exception,  in  such  event,  operates  as  a  recognition  of  the 
existing  rights  of  such  third  persons,  and  serves  to  convey 
notice  to  the  grantee.^i 


ger,  or  even  against  the  grantor  or 
his  assigns,  for  an  entry  on  the 
land  for  any  purpose  other  than 
that  specified  in  the  reservation. 
Dygert  v.  Matthews,  11  Wend.  (N. 
Y.)  35.  In  a  conveyance  of  land 
a  right  of  way  was  reserved  for  a 
portion   thereof   "from  the   public 

highway   along   the   side    of 

sub-lot  No.. to  the  river,  not 

less  than  feet  wide."     Held, 

that  this  reservation  of  the  right 
of  way  was  not  void  for  uncer- 
tainty. The  parties  interested 
could  locate  it  by  agreement,  or  by 
acts,  conduct  and  declarations  in- 
dicating a  practical  location,  ac- 
companied by  user  from  and  after 
the  date  of  the  creation  of  the  right 
of  way.  Crocker  v.  Crocker,  5 
Hun  (N.  Y.)  587. 

18  Hornbeck  v.  Westbrook,  9 
Johns.  (N.  Y.)  73;  Littlefield  v. 
Mott,  14  R.  I.  288. 


19  Gay  V.  Walker,  36  Me.  54 
Bridger  v.  Pierson,  45  N.  Y.  691 
Karmuller  v.  Krotz,  18  Iowa  358 
Barber  v.  Barber,  33  Conn.  335. 

20  West  Point  Iron  Co.  v,  Rey- 
mert,  45  N.  Y.  703.  As  where  a 
deed  from  A.  to  B.  contained  a 
clause  recognizing  the  right  of  C. 
to  a  mine  by  "reserving  to  C.  the 
right  he  has  to  the  ore-bed  and  the 
right  of  way  to  the  West  Point 
foundry,  as  now  used."    Ibid. 

21  As  where  a  deed  with  cov- 
enants for  quiet  enjoyment  con* 
tained  the  following  clause:  "Re- 
serving always  a  right  of  way,  as 
now  used,  on  the  west  side  of  the 
above-described  premises  for  cat- 
tle and  carriages,  from  the  public 
highway  to  the  piece  of  land  now 
owned  by  R."  Held,  that,  although 
strictly  a  reservation  in  a  deed  is 
ineffectual  to  create  a  right  in  any 
person   not   a   party   thereto,   yet 


RESERVATIONS    AND    EXCEPTIONS. 


557 


§471.  Rights  of  way.  Out*  of  the  must  coinmon  rcserva- 
tious  made  in  deeds  is  lluit  of  roadways,  patliH  aud  other  ease- 
ments of  a  like  character  covered  by  the  generic  term  "rights 
of  way."  Usually  reservations  of  this  kind  are  consti-ued  to 
create  only  an  easement — the  fee,  with  all  its  incidents,  vest- 
ing in  the  grantee.22  The  only  effect  of  such  a  reservation, 
therefore,  is  to  protect  th(,^  grantor  from  liability  on  the  cov- 
enants of  his  deed,  liut  where  the  clause  takes  the  form  of 
an  exception  from  the  grant,  so  that  no  title  in  fact  as  well 
as  in  law  ever  i)assed  to  the  grantee,  the  fee  as  well  as  the 
use  is  included.-'* 

Usually,  however,  courts  will  incline  to  construe  exceptions 
as  having  reference  only  to  the  easement  and  not  to  the  land; 
and  where  the  exception  is  of  a  "road"  or  of  a  '"highway," 
and  not  of  the  land  covered  by  such  road  or  highway,  it 
may  be  taken  as  an  exception  of  the  right  of  passage  merely, 
and  therefore  be  treated  simply  as  a  reservation,  and  the 


there  being  in  fact  a  right  of  way 
existing  at  the  time  of  the  grant  in 
R.,  such  clause  must  be  construed 
as  an  exception  from  the  property 
conveyed;  and  that  the  grantor 
was  not  liable  to  the  grantee  as  for 
a  breach  of  his  covenant.  Bridger 
V.  Pierson,  45  N.  Y.  601;  and  see 
Richardson  v.  Palmer,  38  N.  H. 
212. 

22  Caradine  v.  Caradine,  33  Miss. 
698;  Keeler  v.  Wood,  30  Vt.  242. 
As  where  a  deed  conveyed  certain 
property,  "reserving  to  the  pub- 
lic the  use  of  the  road  through  said 
farm,"  it  was  held  that  the  inten- 
tion of  the  grantor  was  to  convey 
to  the  grantee  the  lands  over  which 
the  public  highway  was  laid  out, 
subject  only  to  the  right  of  way  of 
the  public  over  the  same.  Richard- 
son V.  Palmer,  38  N.  H.  212.  So, 
a  reservation  of  "a  road  ten  feet 
wide  along  the  line  of  Joseph 
Badger"  was  held  to  carry  only  a 
right  of  way  and  not  the  fee  of  the 
strip.    Kister  v.  Reeser,  98  Pa.  St. 


1;  and  see  Winthrop  v.  Fairbanks, 
41  Me.  311;  Dunn  v.  Sanford,  51 
Conn.  443;  Bridger  v.  Pierson,  45 
N.  Y.  601.  A  reservation  of  "all 
roads  now  established  and  built  on 
or  over"  premises  conveyed  by 
deed  relates  only  to  the  easement 
of  public  travel,  and  does  not 
except  any  portion  of  the  soil  from 
the  operation  of  the  deed.  Capron 
v.  Kingman,  14  Atl.  Rep.  868. 

-3  An  exception  in  a  deed  in  the 
following  words:  "Saving  and  ex- 
cepting from  the  premises  hereby 
conveyed  all  and  so  much,  and 
such  part  and  parts  thereof,  as 
has  or  have  been  lawfully  taken  for 
a  public  road  or  roads,"  held  to  be 
an  exception  of  the  land  covered  by 
a  public  highway  across  the  prem- 
ises, and  not  simply  of  the  ease- 
ment therein,  and  that  the  fee  of 
such  land  remained  in  the  grantor 
and  passed  to  a  subsequent  pur- 
chaser from  him.  Munn  v.  Wor- 
rall.  53  N.  Y.  44;  And  see  Salisbury 
v.  Andrews,  19  Pick.  (Mass.)  252. 


658  RESERVATIONS    AND    EXCEPTIONS. 

soil  may  be  regai'ded  as  passing  to  llu'  grautee  in  the  deed.^* 
I>ut  as  a  person  through  whose  lands  a  highway  is  laid  out 
may  convey  the  land  on  each  side,  retaining  the  fee  of  the 
land  covered  by  the  roadway,^^  this  result  will  follow  where 
proper  and  apt  words  to  except  such  land  from  the  premises 
conveyed  by  the  general  description  are  inserted  in  the  deed. 
Hence,  if  the  exception  does  not  purport  to  be  of  any  partic- 
ular estate  or  interest  in  the  land,  but  is  in  terms  of  a  cer- 
tain part  and  parcel  of  the  premises  embraced  within  the 
boundaries  set  forth  in  the  deed,  effect  must  be  given  to  it  as 
such.26 

It  is  competent  for  the  parties  to  agree  upon  a  general  res- 
ervation and  effect,  in  such  cases,  will  be  given  to  their  agree- 
ment. Usually,  however,  reservations  are  made  for  specific 
purposes  or  with  respect  to  specific  things,  and  the  rights 
thus  acquired  will  continue  to  subsist  only  so  long  as  the 
things  shall  remain  and  the  specific  user  is  reasonably  neces- 
sary and  convenient  for  the  purpose  for  which  it  was  cre- 
ated.27  Thus,  a  reservation  of  a  right  of  way  to  the  stables 
of  the  vendor  will  continue  only  so  long  as  the  buildings  are 
used  for  such  purpose,  and  will  cease  whenever  the  specific 
user  ceases.28 

Where  a  right  of  way  is  not  bounded  by  the  grant  the  law 
will  bound  it  by  the  line  of  reasonable  enjoyment,  and,  it 
seems,  even  where  specific  dimensions  are  stated,  as  where 
the  w-ay  is  over  a  space  twenty  feet  in  width,  this  does  not 
imply  an  absolute  right  to  use  every  part  of  the  twenty  feet, 
but  is  merely  a  grant  of  a  convenient  way  within  those  lim- 

itS.29 

24  In  Peck  V.  Smitii,  1  Conn.  103,  The  court  held  that  "a  road"  was 

which  is  the  leading  case  in  sup-  a  right  of  passage  merely,  and  the 

port  of  this  position,  the  language  soil   over   which    it  passed   would 

of  the  exception  was,  "saving  and  not  be  transferred  by  a  conveyance 

excepting  the  road  or  highway  laid  of  the  road. 

out,"    etc.;     and    the    court     held  2n  Jackson     v.     Hathaway,       15 

that  the  term  "highway"  or  "road"  Johns.  (N.  Y.)  447. 

did  not  necessarily  mean  the  land  20  Munn  v.  Worrall,  53  N.  Y.  44. 

over  which  the  road  passed,  and  Compare  Elliott  v.  Small,  35  Minn, 

that  therefore  only  the  easement  396. 

was   excepted.     But   in   this   case  27  Bliss  v.  Greeley,  45  N.  Y.  671. 

there  were  three  dissenting  opin-  2,s  Grafton  v.  Moir,  130  N.  Y.  465. 

ions.     In  Leavitt  v.  Towle,  8  N.  H.  2!)  See    Johnson    v.    Kinnicutt,    2 

96,  the  exception  was  of  a  "road"  Cush.  (Mass.)  153. 
laid    out    through     the     premises. 


RESERVATIONS    AND    EXCEPTIONS.  ooO 

§472.  Right  of  flowage — Water  privilege.  Where  a  ^rant 
is  uiade  of  kind  bounded  on  or  near  a  pond  or  Htreani,  but 
reserving  the  mill  and  water  privilege,  this  is  a  reservation  of 
the  right  of  llowing  the  land  so  far  as  may  b(?  necessary  or 
ccnveuient  or  so  far  as  it  has  been  usual  to  How  it  for  that 
parpose;^'^  and  such  liowage  will  not  constitute  an  incum- 
brance within  the  meaning  of  the  covenants  of  the  deed.^i 

§  473.  Light  and  air.  It  is  beyond  dispute  that  an  existing 
easement  cannot  strictly  be  made  the  subject  either  of  excep- 
tion or  reservation  in  a  deed  or  conveyance  of  land;  for  it  is 
neither  parcel  of  the  land  granted,  which  circumstance  is 
requisite  to  enable  a  thing  to  be  excepted,  nor  does  it  issue  out 
of  the  land,  as  it  should  to  render  it  capable  of  being  the  sub- 
ject of  a  reservation.  Hence,  where  an  existing  easement  is 
incorrectly  reserved  to  a  grantor,  or  excepted  from  tlie  land 
conveyed,  its  legal  effect  will  be  to  operate  as  a  grant  of  a 
newly  created  privilege  or  easement  by  the  grantee  of  the  land 
to  the  grantor."^-  These  principles  apply  to  reservations  of 
light  and  air;  and  where  a  deed  contains  stipulations  for  the 
preservation  of  the  then  conditions  of  buildings  standing  upon 
land  retained  by  the  grantor,  or  even  with  reference  to  future 
erections,  and  provides  for  the  free  and  unobstructed  right  of 
light  and  air  by  means  of  windows  overlooking  the  tract  con- 
veyed, such  reservation  will  be  construed  as  a  newly  created 
easement  of  light  and  air  from  the  vendee's  property,  and  any 
interference  by  him  which  would  result  in  a  substantial  loss 
of  these  privileges  will  be  restrained  by  injunction.^^ 

30  Pette  V.  Hawes,  13  Pick,  build  on  the  common  line  between 
(Mass.)  323.  the  pai'ties,  and  the  right  to  put 

31  Pette  V.  Hawes,  13  Pick,  windows  in  said  building  overlook- 
(Mass.)  323.  ing  the  tract  above  described,"  etc. 

32  Rosenkrans  v.  Snover,  19  N.  J.  He  afterwards  built  upon  the  com- 
Eq.  420.  mon  line  between  the  lands  of  B. 

33  A.,  who  was  the  owner  of  a  and  himself,  and  put  in  his  build- 
strip  of  land  fifty  feet  wide  and  ing  several  windows  overlooking 
two  hundred  and  twenty  feet  deep,  B.'s  land.  B.  is  about  to  erect  a 
sold  the  westerly  half  of  that  land  building  on  his  land  that  will  close 
to  B.,  by  a  deed  which  contained  two  of  A.'s  windows,  and  partially 
the  following  reservation:  "Re-  close  two  others.  Held,  that  the 
serving  the  right  to  the  free  use  of  reservation  operates  as  a  grant  of 
the  light  and  air  over  the  tract  a  newly-created  easement,  at  least 
above  described  in  case  he  should  to  light  and  air  from  B.'s  premises. 


560  RESERVATIONS    AND    EXCEPTIONS. 

§  474.  Use  and  occupancy.  A  reservation  of  a  right  to  use 
and  occui)y  the  granted  premises,  either  for  a  stated  term  of 
years  or  for  life,  is  ordinarily  created  by  the  employment  of 
those  words;  and  unless  there  is  some  special  stipulation  tend- 
ing to  show  that  such  reserved  right  of  occupancy  is  personal 
to  the  grantor  or  the  person  for  whom  the  reservation  was 
created,  it  will  be  regarded  as  a  general  right  with  all  its 
ordinary  legal  incidents.-^^  If  it  is  intended  to  make  the  res- 
ervation personal  in  its  character,  limiting  the  use  to  the 
grantor,  the  language  employed  should  be  reasonably  clear 
and  explicit  to  that  effect;  otherwise  no  such  limitation  will 
attach.35 

§  475.  Reserved  rights  in  the  soil.  While  in  a  majority  of 
cases  reservations  or  attempted  reservations  of  personal 
rights  in  the  grantor  are  made  with  reference  to  some  specific 
use  in  the  nature  of  an  easement,  yet  it  not  infrequently  hap- 
pens that  substantial  rights  in  the  soil  are  also  w  ithheld  from 
the  grant  in  this  manner.  Strictly  speaking,  these  latter 
would  be  exceptions  and  not  reservations,  yet  where  the  term 
^'reservation"  is  employed  with  apparent  intent  to  create  an 
exception,  effect  will  be  given  to  it  as  such.  Among  the  most 
common  of  this  class  is  the  right  to  take  minerals.  Some- 
times the  reservation  or  exception  is  clearly  expressed  as  to 
the  nature  or  character  of  the  minerals  thus  excepted,  as  coal, 
stone,  iron,  etc.,  but  more  frequently  parties  are  content  with 
general  references;  and  the  word  most  commonly  employed 
is  the  general  term  "minerals."  Allusion  has  been  made  in 
other  parts  of  this  work  to  the  embarrassment  which  the  em- 
ployment of  this  term  often  occasions,  and  the  difficulty 
which  courts  have  experienced  in  placing  upon  it  a  proper 

and  that,  if  it  had  been  made  to  premises    for    five   years,     if     we 

appear  that  the  interference  with  choose  to  do  so  for  that  length  of 

A.'s  windows  would   result  in  his  time  from  the  date  of  this  deed; 

substantial  loss  of  light  and  air,  he  but  if  we  leave  the  possession  and 

would  have  been  entitled  to  an  in-  occupancy  of  said  premises  before 

junction.     Hagerty  v.  Lee,  15  Atl.  the   expiration  of  said  five  years, 

Rep.    399.      Compare     Wilder     v.  then  this   reservation  shall  be   at 

Wheeldon,  56  Vt.  344.  an   end   and   determine,   and     the 

34  Cooney  v.  Hayes,  40  Vt.  478.  grantee  shall  have  full  possession 

35  Thus,  a  clause  in  a  deed  "re-  thereof,"  held  not  to  be  a  limita- 
servins  to  ourselves  the  right  to  tion  personal  in  its  nature,  but 
use  and   occupy  the  said  granted  general,  and  imports  the  right  to 


RESERVATIONS    AND    EXCEPTIONS.  661 

construction  when  used  uh  a  dcscriptiuu  in  u  grant.  Such  an 
exception  would  certainly  carry  veins  and  beds  of  ore,  and 
usually  deposit H  of  coal  and  other  fossils;  while  it  would 
not  be  doing  violence  to  language  to  ijerniit  it  to  include 
strata  of  rocks,  chalk  or  salines,  all  of  which  may  be  obtained 
by  the  various  processes  known  as  mining.  Possibly,  and 
under  certain  cireunistances,  it  might  be  made  to  include 
clays  and  other  earths.  Such  an  exception,  however,  has  been 
held  not  to  include  gases  or  earth  oils,*^"  but  the  volume  of 
authority  now  places  these  products  in  the  category  of  min- 
erals,^^  and  makes  them  a  part  of  the  land  while  in  place, 
hence  it  would  seem  that  under  a  deed  excejjting  or  reserving 
the  minerals,  natural  gas  or  petroleum  oil  will  not  pass.-''^ 

Exceptions  and  reservations  of  this  character  are  frequently 
so  broad  as  to  be  repugnant  to  the  grant,  though  it  would 
seem  that  great  latitude  is  to  be  allowed  in  construction.-''^ 

An  exception  of  mines,  minerals,  ore-beds,  etc.,  where  the 
specific  thing  is  taken  out  of  the  grant,  must  be  distinguished, 
however,  from  the  mere  reservation  of  a  right  to  enter  and 
take  the  same.  Thus,  a  reservation  of  "the  right  of  mining 
on  the  granted  premises"  a  certain  quantity  of  ore  annually 
would  operate  only  as  a  license  to  enter  and  mine;  it  would 
give  no  title  to  the  land  or  to  the  ore  before  it  should  be 
mined;  nor  would  it  restrict  the  grantee  from  mining  at  the 
same  time,  even  to  the  exhaustion  of  the  ore.^^ 

A  reservation  of  the  right  of  mining,  and  incidentally  of 
sinking  sliafts,  etc.,  also  gives  to  the  grantor  the  right  to  place 
buildings  on  the  surface,  to  use  part  of  the  same  for  a  dump, 

occupy  personally   or  by  tenants,  of  compositions,  combinations  and 

Cooney  v.  Hayes,  40  Vt.  478.  compounds  of  any  or  all  the  fore- 

■to  Durham    v.    Kirkpatrick,    101  going  substances,  and  also  all  val- 

Pa.    St.    36;    but  see  Marshall   v.  uable  earths,  clay,  stones,   paints 

Mellon,  179  Pa.  St.  371.  and   substances   for   the   manufac- 

37  Kelly  V.  Ohio  Oil  Co.,  57  Ohio  ture  of  paints  upon  or  under  the 
St.  317;  Williamson  v.  Jones,  39  said  tract  of  land,"  held  to  reserve 
W.  Va.  231.  clay   suitable   for   making  bricks; 

«s  Murray   v.   Allred,    100   Tenn.  and  that  the  reservation  was  not  to 

100.  be  construed  as  being  as  broad  as 

38  Thus,  a  reservation,  "excepting  the  grant,  the  grant  passing  the  or- 
and    reserving    thereout    unto    A.  dinary  glebe,   timber   and   waters. 
.     .     .    all  and  all  manner  of  met-  Poster  v.  Runk,  109  Pa.  St.  291. 
als  and  minerals,  substances,  coals,  lo  Stockbridge  Iron   Co.  v.  Hud- 
ores,  fossils,  and  also  all  manner  son   Iron   Co.,   107   Mass.   290.     It 

36 


563  RESERVATIONS    AND    EXCEPTIONS. 

and  generally  to  do  all  needful  and  proper  things  connected 
with  the  exercise  of  the  right.^^ 

§  476.  Standing  timber.  A  very  common  example  of  res- 
ervation or  exception  is  presented  in  manA'  parts  of  the  coun- 
try where  stipulations  are  inserted  in  deeds  of  conveyance 
with  reference  to  trees  or  "timber"  then  growing  upon  the 
granted  land.  Such  stipulations  are  generally  intended  for 
exceptions,  but  their  legal  effect  is  more  often  only  that  of  res- 
ervations. In  some  cases  the  timber  itself  is  reserved;  and 
the  courts  hold  that  this  is  strictly  an  exception,  since  it  is  a 
part  of  the  realty  or  the  land,  and  would  have  passed  to  the 
grantee  but  for  the  exception.  In  such  case  the  property  in 
the  timber  continues  in  the  grantor,  with  a  right  to  so  much 
of  the  soil  as  is  necessary  to  sustain  it.*^  Usually,  however, 
the  stipulation  only  provides  for  a  right  to  cut  and  remove  the 
timber — a  fixed  time  being  ordinarily  named  as  the  limit  in 
which  the  right  is  to  be  exercised.  In  this  event  the  stipula- 
tion does  not  have  the  effect  to  except  the  w^ood  from  the 
grant,  but  merely  reserves  a  right  to  enter,  cut  and  remove  it, 
or  so  much  as  the  grantor  may  be  able  to  cut  and  remove 
within  the  time  specified  in  the  deed.*^  In  case  of  the  neglect 
of  the  grantor  to  cut  and  remove  the  timber  within  the  time 
specified,  the  reservation  would  lapse  and  the  estate  become 
absolute  in  the  vendee.^* 

But  where,  in  a  deed  granting  land,  the  timber  thereon 
is  expressly  excepted  from  the  grant,  the  title  to  the  timber 
remains  in  the  vendor,  who,  by  virtue  of  the  exception,  has  an 
implied  power  to  enter,  fell  and  take  it  away.^^  His  title  to 
the  timber  ai'ising  from  the  exception  in  the  deed  is  of  the 
same  binding  force  and  effect  as  if  the  whole  estate  had  been 
originally  granted  and  a  deed  had  been  executed  to  him  from 

was   held    in    this    case,   however,  544;     Wait  v.  Baldwin,    60     Mich. 

that  such  a  deed  might  be  reformed  622. 

in  equity,   for     variance     through  43  Pease   v.   Gibson,    6    Me.    81; 

mutual  mistake  from  the  previous  Reed  v.  Merrifield,  10  Met.  (Mass.) 

oral   contract    of    the    parties,   as  155;     Martin  v.  Gilson,     37     Wis. 

being  a  reservation  and  not  an  ex-  362. 

ception,  and  therefore  not  within  44  Rich  v.  Zeilsdorff,  22  Wis.  544. 

the  statute  of  frauds.  -is  Boults  v.  Mitchell,  15  Pa.  St. 

41  Warden  V.  Watson,  93  Mo.  107.  371;    Pierrepont  v.  Barnard,  6  N. 

42  Howard    v.    Lincoln,    13    Me.  Y.  279. 
122;    Rich   v.    Zeilsdorff,    22   Wis. 


RESERVATIONS    AND    EXCEPTIONS.  563 

his  grantee  of  all  the  timber  upon  the  laud.^®  In  such  event 
the  rij^lit  to  enter  upon  the  land  and  cut  and  remove  timber 
at  pleasure  would  have  passed  as  an  incident  of  the  grant  and 
as  essential  to  the  enjoyment  of  the  right  of  property,  and  the 
right  is  e(iually  as  well  assured  in  an  exception.  Such  a  right, 
where  there  are  no  words  showing  a  limitation  of  the  time  of 
enjoyment  or  within  which  it  shall  be  exercised,  is  not  revo- 
cable; nor  can  it  be  terminated  at  the  will  of  the  owner  of  the 
land,  nor  by  notice  to  remove  the  timber  in  a  reasonable  time. 
The  right  does  not  rest  upon  the  notion  of  a  license  from  the 
grantee,  but  as  being  conncuted  with  the  exception  as  an  inci- 
dent to  its  enjoyment,  and  is  an  interest  in  the  land  itself  to 
that  exteut.^^ 

§  477.  Reserved  rights  lost  by  disuse.  A  reserved  right 
may  be  lost  by  long  negligence  and  disuse;  and  the  presump- 
tions of  their  release  or  discharge  are  favored  for  the  sake  of 
quieting  possessions.^**  Thus,  reservations  in  the  nature  of  a 
right  of  common,  or  other  easements  of  like  character,  may 
be  deemed  to  have  been  relinquished  where  there  has  been  no 
exercise  of  the  right  for  a  long  period  of  time,  particularly 
where,  by  a  fair  construction  of  the  language  of  the  deed,  it  is 
apparent  that  it  was  not  the  intention  of  the  parties  as  ex- 
pressed by  the  reservation  that  the  laud  should  always  con- 
tinue subject  to  the  servitude,  however  appropriated  by  the 
owner.^'-*  Long  disuse,  in  such  a  case,  will  let  in  the  presump- 
tion of  a  release  or  other  discharge;  and  such  presumptions 
are  to  be  favorably  received  in  opposition  to  dormant  claims, 
because  they  conduce  to  the  repose  of  titles  and  the  security  of 
estates. 

40  Wait  V.  Baldwin,  CO  Mich.  622.  right  reserved   ceased  as  soon  as 

47  Rich  V.  Zeilsdorff,  22  Wis.  544;  the  premises  were  fenced  in  by  the 

Wait  V.  Baldwin,  60  Mich.  622.  grantee,    especially    where    it    ap- 

■»«  Broeck     v.      Livingstone,       1  peared  that  the  premises  had  been 

Johns.  Ch.  (N.  Y.)  357.  inclosed  for  about  thirty  years,  and 

'«  As,  where  a  deed   in  fee  con-  the  right  during  that  period  had 

tained  a  reservation  of  the  right  of  not    been     claimed     or    exercised, 

"cutting   and    hewing   timber   and  Broeck  v.  Livingstone,  1  Johns.  Ch. 

grazing   in   the    woods   not   appro-  (N.  Y.)  357. 
priated  or  fenced  in,"  held,  that  the 


CHAPTER   XIX. 

EXECUTION. 

Art.     I.  Generally     Considebed. 

Art.    II.  Signing. 

Art.  III.  Sealing. 

Art.  IV.  Delivery. 

Aet.  1.     Generally  Considered. 

§  478.     Definition.  §  481.     Execution  in  blank. 

479.  Execution    by    corporation.       482.     Attesting  witnesses. 

480.  Variations    and    discrepan- 

cies. 

§  478.  Definition.  The  term  "execution"  primarily  means 
the  accomplishment  of  a  thing — the  completion  of  an  act  or 
instrument;  and  in  this  sense  it  is  used  in  conveyancing  to 
denote  the  final  consummation  of  a  contract  of  sale.  The  term 
properly  includes  only  those  acts  which  are  necessary  to  the 
full  completion  of  an  instrument  of  conveyance,  which  are: 
the  signature  of  the  disposing  party,  the  aflSxing  of  his  seal  to 
give  character  to  the  instrument,  and  its  delivery  to  the 
grantee.  Acknowledgment  is  sometimes  included  in  the  term, 
but  as  a  matter  of  fact  the  act  of  acknowledgment  is  no  part 
of  the  execution  of  a  deed,  which,  if  in  all  other  respects  regu- 
lar, is  perfect  and  complete  without  it;  nor  is  the  certificate 
of  acknowledgment  any  part  of  the  deed.  The  different  acts  of 
execution  are  so  essential  to  each  other  that  neither  can  be 
dispensed  with;  but  under  the  current  of  modern  decisions 
sealing  is  perhaps  of  the  least  importance,  and  though  this  is 
still  an  indispensable  requisite  at  law,  in  equity  the  deed  may 
be  effective  without  it, 

§  479.  Execution  by  corporation.  Practically  there  is  no 
difference  between  the  deeds  of  corporations  and  those  of  ordi- 
nary individuals,  and  the  solemnities  attending  their  execu- 
tion differ  only  in  the  fact  that  they  are  necessarily  the  work 
of  agents.  Originally  a  corporation  could  speak  only  by  its 
corporate  seal,  and  by  this  it  authenticated  all  of  its  acts;^ 

1  Thus,  Blackstone  says:  "A  cor-  cannot  manifest  its  intentions  by 
poration  being  an   invisible  body    any    personal    act    or    oral     dis- 

564 


GENERALLY    CONSIDERED. 


565 


but  modern  commerce  and  business  methods  have  preatly 
chauj,'ed  this  rule,  and  corporations  may  now  act  by  their 
aj^ents  the  same  as  natural  persons.  In  grants  of  lands  it  is 
still  customary  to  use  the  corj)orate  seal,  but  in  addition 
thereto  the  hand  of  some  of  its  oHicers  or  agents  is  recjuired, 
either  with  or  without  the  affixing  of  the  corporate  name. 

It  is  customary  and  proper  to  sign  a  deed  with  the  name  of 
the  corporation;-'  but  unless  this  is  a  special  statutory  recpiire- 
nient,3  such  a  method  is  not  necessary  to  impart  validity,*  for 
by  common  law  the  common  seal  is  itself  the  signature  of  the 
corj)oration/'  The  seal,  when  afhxed  to  a  deed  or  contract  by 
proper  authority,"  is  not  distinguishable  in  its  legal  effect 
from  that  of  an  individual,  and  renders  the  instrument  a  spe- 
cialty.^ 

It  has  been  held  that  the  president  of  a  corporation  has  no 
power  as  such,  without  ex{)ress  authorization  from  the  direct- 
ors, to  purchase  or  sell  real  proi)erty  in  the  name  of  the  cor- 
poration, and  that  an  instrument  executed  by  him  for  such 
purpose,  in  the  name  of  the  corporation  and  under  its  common 
seal,  without  the  authorization  of  the  directors,  may  be  shown 
to  be  void:   and  further,  that  a  corporation  is  not  estopped 


course;  it  therefore  acts  and 
speaks  only  by  its  common  seal. 
For,  though  the  particular  mem- 
bers may  express  their  private  con- 
sents to  any  act  by  words  or  sign- 
ing their  names,  yet  this  does  not 
bind  the  corporation;  it  is  the  fix- 
ing of  the  seal,  and  that  only, 
which  unites  the  several  assents  of 
the  individuals  who  compose  the 
community,  and  makes  one  joint 
assent  of  the  whole."  1  Black. 
Com.,  475.  And  see  Brown  v.  Wes- 
terfield,  47  Neb.  399. 

^  Flint  V.  Clinton  Co.,  12  N.  H. 
430;  and  see  Ang.  &  Ames  on  Corp. 
§225. 

3  See  Isham  v.  Iron  Co.,  19  Vt. 
251. 

^  Osborne  v.  Tunis,  1  Dutch.  (N. 
J.)  633. 

•'■  Beckwith  v.  Windsor  Mfg.  Co., 
14  Conn.  594;   Frankfort  Bank  v. 


Anderson,  3  A.  K.  Marsh.  (Ky.) 
932. 

0  The  seal  is  itself  prima  facie 
evidence  that  it  was  affixed  by 
proper  authority.  Solomans  Lodge 
V.  Montmallin,  58  Ga.  547;  Sheehan 
V.  Davis,  17  Ohio  St.  571;  Lovett  v. 
Saw-mill  Ass'n,  6  Paige  (N.  Y.) 
54.  And  that  in  affixing  such  seal 
and  the  hands  of  the  officers,  such 
officers  did  not  exceed  their  au- 
thority. Kansas  v.  R.  R.  Co.,  77 
Mo.  185. 

7  Clark  V.  Mfg.  Co.,  15  Wend.  (N. 
Y.)  256;  Benoist  v.  Carondelet,  8 
Mo.  250.  In  the  absence  of  the  com- 
mon seal,  or  of  proof  of  facts 
whence  the  authority  of  the  of- 
ficers of  a  corporation  to  execute 
a  conveyance  may  be  inferred,  such 
authority  can  only  be  established 
by  resolution  of  the  directors  or 
trustees  entered  in  the  proper  book 


5GG  EXECUTION. 

from  denying  the  validity  of  an  unauthorized  contract  made 
by  its  president  where  it  has  never  availed  itself  of  the  benefits 
of  such  contract.^  As  a  general  rule,  however,  the  president 
of  a  corporation  has  power  to  bind  it  within  the  scope  of  its 
powers;  and  as  its  rules  and  by-laws  are  not  usually  open  to 
public  inspection,  particularly  where  the  home  office  is  in  a 
distant  state,  such  rules  and  by-laws  can  have  no  appreciable 
effect  upon  persons  having  no  knowledge  of  their  existence; 
and  notwithstanding  such  officer  may  have  no  power  to  make 
contracts  or  conveyances  under  the  private  rules  and  regula- 
tions of  the  corporation,  yet  as  to  strangers  without  notice  it 
would  be  estopped  to  deny  the  powers  of  its  officers  to  per- 
form the  specific  acts.^ 

§  480.  Variations  and  discrepancies.  As  deeds  are  usually 
drawn  by  a  conveyancer,  it  will  often  happen  that  a  variance 
will  occur  between  the  name  inserted  in  the  body  of  the  instru- 
ment and  that  affixed  by  the  grantor  in  execution.  One  of 
the  most  common  discrepancies  of  this'  character  is  the  omis- 
sion of  all  or  part  of  the  middle  name  or  initials  or  the  substi- 
tution of  other  middle  names.  This  is  but  a  slight  defect, 
however,  for  the  law  knows  but  one  Christian  name,  and  the 
omission  or  insertion  of  a  middle  name  is  usually  an  imma- 
terial circumstance.^^  Discrepancies  in  the  orthography  of 
the  name  as  written  by  the  scrivener  and  by  the  parties  upon 
execution  are  common;  but  as  these  matters  derive  their  main 
importance  from  the  effect  they  may  have  upon  the  title  when 
forming  the  subject  of  future  sales,  and  as  the  subject  has 
already  been  considered  in  treating  of  objections  to  title,  no 
further  allusion  will  be  made  to  it  at  this  time. 

It  sometimes  happens  that,  through  inadvertence  or  mis- 

of  the  corporation.     Southern  Cal.  sale  of  land  owned  by  the  company. 

Colony    Ass'n    v.    Bustamente,    52  The  rule  is  the  same  where  a  pur- 

Cal.  192.  chaser  receives  a  bond  from  a  cor- 

"<  Bliss  V.  Kaweah,  etc.,  Co.,  3  poration  for  a  deed  for  land  pur- 
West  Coast  Rep.  (Cal.)  571.  chased;  and  he  will  be  entitled  to 

9  Life  Ins.  Co.  v.  White,  106  111.  the  deed  according  to  the  provis- 

67.     A  purchaser  of  land  from   a  ions  of  the  bond,  notwithstanding 

corporation,  being  a  stranger  to  the  there  was  no  order  of  the  board  of 

corporation,  is  not  bound  to  know  directors     authorizing     the     sale, 

that  there  is  a  by-law  of  the  com-  Wait  v.  Smith,  92  111.  385. 

pany    requiring    an    order   of    the  lo  James  v.  Stiles,  14  Pet.  (U.S.) 

board  of  directors  to  authorize  a  322;  Dunn  v.  Gaines,  1  McLean  (C. 


GENERALLY    CONSIDERED.  56'}' 

take,  the  name  of  tlic  ^^liiiilor  lias  been  ciilircly  omitted  in  the 
body  of  the  deed;  and  wliile  it  lias  been  held  that  one  who 
sif^nH,  seals  and  delivers  a  deed  is  ])ound  by  such  acts  as 
grantor,  altliouj,^li  not  named  as  such  tlicrein,''  the  current  of 
later  decisions  would  indicate  that  such  a  deed  is  ineffectual 
to  convey  any  interest  or  jjass  tille.'^  Where  only  a  i)ortion  of 
the  j^rantors  named  in  a  conveyance  si<;n  and  acknowledjjje  the 
same,  the  authorities  are  somewhat  divided  as  to  the  effect  of 
the  deed — some  holdin.u:  that,  where  the  deed  shows  that  it 
was  intended  to  be  jointly  executed  by  all  the  parties,  an  exe- 
cution and  delivery  by  a  portion  only  is  incomplete  and  does 
not  bind  theni.^'^  A  majority  of  the  cases,  however,  favor  the 
contrary  doctrine,  and  seem  to  sustain  the  principle  that  the 
parties  executing  will  be  bound  thereby,  and  the  deed  be  suf- 
ficient to  pass  their  interests.^* 

§  481.  Execution  in  blank.  It  is  axiomatic  that  to  every 
deed  there  must  be  at  least  two  parties,  the  one  capable  of 
conveying  and  the  other  of  receiving,  and  that  a  deed  without 
a  grantee  is  practically  no  deed  at  all.  The  exigencies  of 
modern  commerce,  aided  to  some  extent  by  the  familiar  prin- 
ciples of  estoppel,  have  in  a  measure  and  in  some  localities 
created  an  apparent  anomalous  exception  to  this  rule;  and 
while  no  court  has  gone  the  length  of  asserting  that  a  deed  in 
blank  is  oi)erative  at  the  time  of  its  execution,  yet  the  con- 
struction of  instruments  of  this  character  has  formed  the  sub- 
ject of  a  number  of  decisions  tending  to  uphold  the  same 
where  the  grantee's  name  has  been  subsecjuently  inserted. 
Thus,  it  has  been  held  that  one  who  has  signed  and  acknowl- 
edged deeds  in  blank,  and  furnished  them  to  an  agent  to  fill 
the  blanks  according  to  such  sales  as  he  may  make  for  the 
grantor,  and  deliver  the  deeds  to  the  purchaser,  is  estopped  to 
deny  that  a  deed  filled  up  and  delivered  to  a  purchaser  in  good 
faith  and  for  value  is  a  valid  deed  and  conveys  title.^^    Upon 

Ct.)  321;  Erskine  v.  Davis,  25  111.  322;  Peabody  v.  Hewitt,  52  Me.  33; 

251;    Scofield   v.   Jennings,   68   111.  Bank  v.  Rice,  4  How.  225. 

232.  i"*  Arthur  v.  Anderson,   9   S.  C. 

11  Elliott  v.  Sleeper,  2  N.  H.  525;  234. 

Thompson  v.  Lovrein,  82  Pa.  St.  ^  Story,  Part,   §  119;    Parsons, 

432.  Part..  §  369. 

12  Harrison  v.  Simmons,  55  Ala.  i''  Pence  v.  Arbiickle,  22  Minn. 
510;  Laughlin  v.  Fream,  14  W.  Va.  417;  Ragsdale  v.  Robinson,  48  Tex. 


568  EXECUtlON. 

this  point  the  courts  seem  to  be  mainly  united,  and  though  the 
doctrine  has  received  some  dissent  tlie  volume  of  authority 
fairly  establishes  the  general  rule  as  stated.  Such  a  deed, 
however,  passes  no  title  upon  delivery  until  the  blanks  are 
filled  by  the  grantor  or  his  agent  by  his  authority  ;i<^  and  it 
has  been  held  that,  if  the  name  of  a  grantee  is  afterwards 
inserted  without  his  authonty,  such  deed  will  not  become  suf- 
ficient for  the  purpose  of  passing  the  legal  title  merely  from 
the  fact  that  the  grantee  enters  into  possession  and  pays  the 
purchase  price.^^ 

It  seems  the  agent  of  the  grantor  may  insert  as  grantee, 
the  name  of  one  who  has  contracted  with  him  after  the  execu- 
tion of  a  deed,  upon  the  grantor's  authority  ;i^  but  it  would 
further  seem  he  has  no  right,  even  upon  request  of  the  grantee 
whose  name  he  was  instructed  to  insert,  to  insert  instead  the 
name  of  another  ;i^  and,  w^hile  an  innocent  purchaser  will  in 
most  instances  be  protected,  a  deed  so  signed  may  always  be 
avoided,  when  filled  out  by  one  not  duly  authorized  by  the 
grantor,  as  against  a  grantee  with  full  knowledge  of  the 
facts.2o 

There  is  another  phase  of  the  subject  which,  while  properly 
falling  within  the  principle  under  discussion,  is  nevertheless 
regarded  in  a  very  different  light.  This  occurs  in  the  case  of 
the  insertion  of  some  matter  having  reference  to  the  grantee, 
usually  for  the  purpose  of  better  identification;  and  where  an 
attempt  has  been  made  to  convey  to  a  designated  grantee,  but 
for  any  reason  such  grantee  has  been  imperfectly  described, 
named  or  designated,  it  has  been  held  that  the  execution  of  a 
deed  is  not  invalidated  by  the  insertion  of  a  part  of  the 
grantee's  name  by  his  attorney  after  delivery ,21 

The  objection  that  a  deed  was  executed  in  blank,  and  the 
name  of  the  grantee  inserted  after  delivery,  can  only  be  made 
by  the  grantor  or  one  claiming  through  or  in  right  of  him.22 

379;   Owen  v.  Perry,  25  Iowa  412;        i«  Schintz  v.  McManny,  33  Wis. 

Swartz   V.   Ballou,     47    Iowa   194;  299;  McNab  v.  Young,  81  111.  11. 
Schintz  V.  MoManny,  33  Wis.  299;        i"  Schintz  v.  McManny,  33  Wis. 

McNab  V.  Young,  81  111.  11.  299. 

icAdamson  v.  Hartman,  40  Ark.        -'«  Cooper  v.  Page,  62  Me.  192. 
58.  -1  Devin     v.     Himer,     29     Iowa 

17  Dearguello   v.    Bours,    67   Cal.  297. 
447;  and  see  Disen  v.  Rice,  33  Tex.        22  McNab  v.  Young,  81  111.  11. 
139. 


GENERALLY    CONSIDERED.  509 

It  would  seem  that  tlu'  Hainc  rules  which  {^overu.  the  inser- 
tion of  the  names  of  grantees  in  deeds  of  conveyance  executed 
in  blank  may  also  be  applied  to  insertions  of  subject  matter, 
llence,  where  a  principal  executes  and  delivers  to  his  aj^ent 
a  deed  without  description  and  with  instructions  to  till  same 
in,  the  deed  will  be  fully  0})erative  as  against  the  grantor 
when  this  has  been  done;  and  even  though  the  agent  exceeds 
or  disobeys  his  instructions  in  filling  in  the  blanks,  substitut- 
ing other  i)roperty  than  that  originally  intended,  the  grantor 
will  still  be  bound  if  the  grantee  was  himself  without  fault 
and  acted  in  good  faith.^^  The  principle  upon  which  these 
rules  rest  is  to  place  the  loss,  if  there  be  a  loss,  upon  the  per- 
son who  endowed  the  agent  with  apparent  authority,  and  not 
u])on  an  innocent  third  person  who  trusted  to  such  apparent 
authority,  and  parted  with  his  money  or  property  in  conse- 
quence of  such  trust.  It  is  a  princij)le  that  has  long  obtained 
in  transactions  relating  to  negotiable  securities,  but  it  seems 
is  equally  applicable  to  real  estate  sales  and  conveyances. 

§482.  Attesting  witnesses.  A  deed  is  fully  executed  in 
the  proi)er  sense  of  the  term  when  it  has  been  signed,  staled 
and  delivered.  No  other  acts  were  required  at  common  law, 
and  the  deed  was  considered  complete  when  this  had  been 
accomplished.  Attesting  witnesses  were  sometimes  employed, 
but  this  was  only  for  the  purpose  of  preserving  the  evidence  ;2'* 
they  were  not  considered  necessary  to  give  validity  to  the 
deed,  and  proof  of  the  handwriting  of  the  grantor  was  con- 
sidered sufficient  when  the  execution  of  the  instrument  was 
called  in  question.^^  In  many  of  the  states  the  rule  of  the 
common  law  has  been  retained,  and  no  attesting  witnesses  are 
required;-^  in  others  a  witness  or  witnesses  are  necessary 
where  the  deed  has  not  been  acknowledged,-"^  or  to  make 
proof  of  deed;28  while  in  others  a  peremptory  mandate  of  the 

23  Nelson  v.  McDonald,  80  Wis.  Nevada,  New  Jersey,  North  Caro- 
605.  lina,   Pennsylvania,  Rliode   Island, 

24  2   Black.   Com.   307.  Tennessee,    Texas   and    West   Vir- 
s"'  See  Meuley  v.  Zeigler,  23  Tex.    ginia. 

88;    Thacher  v.   Phinney,   7   Allen        2- As   in    Alabama,    Idaho,    Kcn- 

(Mass.)   149;   1  Wood's  Conv.  239.  tucky,   Montana,    North    Carolina, 

-«  Such  is  the  case  in  California,  Tennessee.    Texas,     Virginia     and 

Dakota,     Illinois,     Indiana,     Iowa,  West  Virginia. 
Kansas     (except    to    prove    deed),        -'s  All  of  the  above  and  Kansas. 
Maine,     Massachusetts,     Missouri, 


570  EXECUTION. 

statute  requires  one  or  more  witnesses  to  impart  legal  valid- 
ity to  the  c'ouveyance.29 

With  respect  to  the  method  in  which  an  attesting  witness 
should  evidence  that  fact,  it  does  not  seem  that  the  rules  are 
any  ditierent  from  those  which  govern  the  affixing  of  the 
grantor's  signature;  hence  it  has  been  held  that  a  person  who 
cannot  write,  but  who  makes  his  mark  or  uses  any  other 
device  by  which  he  or  others  may  identify  him  with  the  trans- 
action, is  a  competent  attesting  witness  to  the  execution  of  a 
deed.3o 

A  deed  attested  by  subscribing  witnesses  will  be  presumed 
to  have  been  duly  witnessed  ;3i  and  if  it  has  been  duly 
acknowledged,  although  there  appears  to  have  been  subscrib- 
ing witnesses,  it  is  not  necessary  to  call  them  for  the  purpose 
of  proving  its  execution.^^  In  the  absence  of  acknowledg- 
ment subscribing  witnesses  are  material,  whenever  the  deed  is 
called  in  question,  for  the  purpose  of  proving  execution;  and 
in  such  event  the  testimony  of  the  witness  authenticating  his 
own  signature  is  usually  all  that  is  required.^s 

29  This  is  the  law  in  Arkansas,  33  in  Russell  v.  Coffin,  8  Pick. 
Connecticut,  Delaware  (one  wit-  (Mass.)  it  was  held  that  the  execu- 
ness),  Florida,  Georgia,  Louisiana,  tion  of  a  deed  was  sufficiently 
Maryland  (one  witness),  Michigan,  proved  for  the  purpose  of  reading 
Minnesota,  Mississippi  (one  or  it  in  evidence,  where  one  of  two 
more),  Nebraska  (one  witness),  witnesses  deposed  that  he  knew  the 
New  Hampshire,  New  York  (one),  attestation  to  be  in  his  handwrit- 
Ohio,  Oregon,  South  Carolina,  ing,  though  he  did  not  recollect 
Utah  (one),  Vermont,  Wisconsin.  witnessing  it,  and  that  he  thought 

30  Tatom  v.  White,  95  N.  C.  453.  the  signature  of  the  other  witness, 

31  Hrouska  v.  Janke,  66  Wis.  252.  who  was  out  of  the  commonwealth, 

32  Simmons  v.  Haven,  101  N.  Y.  was  the  handwriting  of  such  ab- 
427.  sent  witness. 


Article  II.    Signing. 

§  483.    General  principles. 

484.  Method  of  signing. 

485.  Signature  by  mark. 

§  483.  General  principles.  While  all  of  the  different  acts 
of  ('.xcculion  jire  to  a  greater  or  less  extent  necessary  to  the 
validil.y  of  a  deed,  vet  it  derives  its  main  enicaev  from  the  si};- 
nature;  for  an  nnsijj^ed  instrument,  tliou^^h  duly  attested, 
acknowledged  and  delivered,  is  a  nullity.^  There  are  decisions 
in  some  localities  which  seem  in  a  measure  to  militate  aj^ainst 
this  doctrine,  and  to  indicate  that  a  deed  is  not  necessarily 
void  because  the  <;rantor's  name  is  not  subscribed  to  it,  pro- 
vided it  is  written  in  his  own  handwriting,  and  so  placed  in 
the  body  of  the  deed  as  to  control  the  grant.^  The  question 
in  such  case  becomes  one  of  intention,  and  may  be  considered 
by  a  jury  in  lonnection  with  other  circumstances.  The  prin- 
ciple, however,  is  not  affected  by  these  decisions,  and  all  the 
authorities  concur  that  a  signinj?  of  some  sort  is  absolutely 
necessary  to  impart  vitality  to  a  j^rant  by  deed. 

By  the  old  rules  of  the  common  law  a  signature  was  not 
considered  essential  to  the  validity  of  a  deed,  the  seal  being 
suflHcient  to  show  assent  and  execution.  This  was  doubtless 
occasioned  by  reason  of  the  very  general  inability  of  the  mass 
of  the  i)eople  to  read  or  write,^  and  the  importance  which  was 
formerly  attached  to  seals  as  the  signets  of  their  owners.^  It 
would  seem,  however,  that  under  the  Saxon  rule  signing  was 

1  Goodman  v.  Randall,  44  Conn,  volving    the    execution    of    instru- 

325;  Jones  v.  Gurlie,  61  Miss.  423.  ments  and  it  would  seem  that  when 

-  Saunders   v.    Hackney,    10   Lea  a  king's  hand  was  necessary  to  the 

(Tenn.)    194.  execution   of   a   charter,   grant   or 

:<  See  1  Reeve's  Hist.  Eng.  Law,  treaty,  he  simply  smeared  his  right 

184.  hand   with   ink,   and.   making  his 

*  For  many  years  the  use  of  the  impression  upon  the  parchment, 
pen  was  practically  unknown  both  said,  "Witness  my  hand,"  and  exe- 
to  prince  and  peasant;  but  few  cution  was  complete.  Later  the 
could  read  and  still  less  could  ancient  seal,  then  usually  set  in  a 
write,  yet  at  a  very  early  day  the  finger  ring,  was  again  brought  into 
efficacy  of  sealing  and  signing  was  use,  and  this  was  impressed  in- 
recognized  in  legal  transactions  in-  stead  of  the  hand,  but  oftener  be- 

571 


S72  EXECUTION. 

in  gentu'al  use,  provided  the  parties  were  able  to  write,  and 
whether  they  could  write  or  not  it  was  customary  to  affix  the 
sign  of  the  cross;  but  on  the  Norman  conquest  waxen  seals, 
usually  of  specific  device,  were  introduced  and  took  the  place 
of  the  Saxon  method  of  signing  by  writing  the  name  and  mak- 
ing the  sign  of  the  cross. 

By  the  statute  of  29  Charles  II.,  for  the  prevention  of  frauds 
and  perjuries,  all  transfers  of  land  were  required  to  be  put  in 
writing  and  signed  by  the  parties  making  the  same;  and  this 
statute  is  the  foundation  of  all  the  American  laws  upon  the 
same  topic.^ 

§  484.  Method  of  signing.  While  the  law  is  strenuous  in 
its  demands  that  the  deed  of  a  grantor  must  be  attested  by 
his  signature,  it  is  equally  lenient  as  to  the  method  by  which 
such  signature  shall  be  applied.  Thus,  the  deed  may  be 
signed  by  the  grantor  himself  or  by  some  other  person  acting 
for  him.  In  the  latter  event  the  person  so  assuming  to  act 
must,  of  course,  have  a  proper  authorization  so  to  do ;  and  this 
authority  must  be  of  a  character  equal  in  dignity  to  the  instru- 
ment to  which  the  principal's  name  is  appended.  In  case  of  a 
deed,  being  an  instrument  under  seal,  the  authorization  mus-t 
itself  be  under  seal. 

But  to  the  rule  last  stated  an  important  exception  has  been 
made  in  many  states,  by  which,  if  the  name  of  the  grantor  is 
affixed  by  some  other  person,  at  his  request  and  in  his  pres- 
ence, such  a  signing  is  made  as  effectual  for  all  intents  and 
purposes  as  though  it  had  been  the  grantor's  personal  act.^ 
It  is  contended  in  support  of  this  doctrine  that  the  disposing 
capacity  and  the  act  of  the  mind  are  the  only  essential  and 
efficient  ingredients  which  go  to  constitute  the  act  of  grant. 
Hence,  if  these  are  present,  though  the  name  be  written  by 
another  hand,  yet,  if  in  the  presence  and  at  the  request  of  the 
grantor,  it  is  his  act.     The  simple  fact  that,  through  inca- 

side  the  hand;   and  from  the  lat-  should  seal,  and  now,  in  most  cases, 

ter  we  derive  the  phrase  "Witness  I  apprehend,  should  sign  it  also." 

my   hand  and   seal."  c  Gardner    v.    Gardner,    5    Gush. 

5  In    Blackstone's    time    signing  (Mass.)    483;   Frost  v.  Deering,  21 

does  not  seem  to  have  been  essen-  Me.  156;  Goodell  v.  Bates,  14  R.  I. 

tial,    although    he    says     (1    Com.  6.5;   Jansen  v.  Cahill,  22  Cal.  563; 

305):     "It  is  said  to  be  requisite  Conlan    v.    Grace,    36    Minn.    276; 

that  the   party   whose   deed   it   is  Lewis  v.  Watson,  98  Ala.  479. 


SIGNING.  573 

pacity,  or  weaknoss.  or  any  other  reason,  the  grantor  uses  the 
hands  of  anollier  instead  of  his  own  to  do  the  jjhysical  acts  of 
making  ti  written  sij?n  is  of  no  .onsequonce,  and  the  sij^ning 
is  as  much  his  act  as  if  he  held  the  pen  and  his  liand  was 
guided  by  another.  To  hold  otherwise,  it  is  said,  would  be  to 
decide  that  a  person  having  a  full  mind  and  clear  capacity, 
but  through  jihysical  inability  inca]»able  of  making  a  mark, 
could  never  make  a  conveyance  or  execute  a  deed;  for  the 
same  incapacity  to  sign  and  seal  the  principal  deed  would  pre- 
vent him  from  executing  a  letter  of  attorney  under  seal.'^  In 
opposition  to  this  doctrine  there  are  a  few  cases  which  have 
arisen  in  the  construction  of  local  statutes ;8  but  the  entire 
current  of  modern  authority  is  in  support  of  the  rule  that  a 
deed  is  properly  and  sulliciently  signed  where  the  grantor's 
name  is  athxed  by  another,  if  done  at  his  request  and  in  his 
presence,  and  the  question  of  i)hysical  incapacity  is  imnia- 
terial.'-' 

A  still  further  exception  has  been  made  in  some  states, 
where  a  signature,  though  subscribed  by  another  hand  and  in 
the  absence  of  the  grantor,  is  nevertheless  subsequently  recog- 
nized and  adopted  by  the  grantor  as  his  own;^"  and  a  j)erson 
who  a]»pears  before  a  magistrate  and  duly  acknowledges  the 
execution  of  a  deed  to  which  his  name  has  been  appended  by 
another  in  his  absence  is  held  to  recognize  and  adopt  such  sig- 
nature.^^  A  deed  so  ratified  has  been  held  to  be  valid  and 
eil'ectual  for  all  ])ur])()ses.'- 

55  485.  Signature  by  mark.  As  the  true  meaning  of  a  sig- 
nature is  to  evidence  the  disposing  purpose  of  the  grantor,  it 
follows  that  any  act  of  his  plainly  evincing  intention  will  be 
binding  upon  him;  and  while  his  name  appended  by  his  own 
hand  is  the  highest  and  best  evidence  of  such  intention,  yet 
any  other  unequivocal  act  done  or  directed  by  him  will  be 

T  Gardner  v.    Gardner,   5    Cush.  deed  is  valid.     Clough  v.  Clough, 

(Mass.)     483;     Life     Ins.    Co.    v.  73  Me.  487. 

Brown,  30  N.  J.  Eq.  193;   and  see  lo  Greenfield   Bank   v.   Crafts,   4 

Bartlett  v.  Drake.  100  Mass.  174;  Allen     (Mass.)     447;     Bartlett    v. 

Forsyth  v.  Day,  46  Me.  17G.  Drake,  100  Mass.  174;    Forsyth  v. 

^<  See  Wallace  v.   McCullough,   1  Day.  46  Me.  176. 

Rich.  Eq.  (S.  C.)  426.  n  Bartlett  v.    Drake.   100   Mass. 

"  If  a  grantor  acknowledges  and  174;  Lewis  v.  Watson,  98  Ala.  479. 

delivers  a  deed  to  which  his  name  '2  White  v.  Graves,  107  Mass.  328. 
has  been  aflSxed  by  the  grantee  the 


574  EXECUTION. 

equally  efifoctive.  Honco  it  is  that  a  person  physically  unable 
or  too  illiterate  to  write  his  name  may  sign  by  any  arbitrary 
symbol — a  cross,^^  a  crooked  line,  or  any  other  device  intended 
by  him  as  a  sign-manual;  and  the  adoption  of  such  mark  or 
device,  if  the  deed  is  in  other  respects  regular,  will  be  as 
effective  to  transfer  the  estate  as  if  his  name  had  been  written 
thereon  in  full  by  himself.^^  A  grantor's  mark  may  be  made 
by  himself,  or  by  merely  touching  the  pen  in  the  hands  of 
another.i^ 

A  grantor  may  sign  by  a  mark,  even  though  able  to  write; 
and  instances  are  frequent  where  parties  have  resorted  to  a 
mark  as  the  result  of  temporary  causes,  difficulty  in  writing, 
or  other  reasons,  and  not  from  inability  to  write.  The  only 
serious  consequence  arising  from  such  a  practice  is  the 
apparent  want  of  identity  where  a  mark  is  used  in  one  case 
and  a  written  signature  in  another;  but  this  is  but  a  slight 
circumstance  where  both  instruments  are  properly  acknowl- 
edged.i® 

It  is  customary  and  proper  to  write  the  w^ords  ''his  mark" 
over  or  near  the  device  made  or  adopted  by  the  marksman, 
yet  this  is  not  essential;  it  is  sufficient  in  every  case  if  it 
appears  that  he  in  fact  made  the  mark  or  adopted  it.^''^ 

13  It   was   a  custom   among    the  of  Italy   (A.  D.  455-526),  who  had 

early  Britons,  prior  to  the  Norman  done  the  same  thing,  in  the  same 

conquest,   to   authenticate   all    im-  way  and  for  the  same  reason.  From 

portant  documents   with   a   signa-  this  ancient  custom  of  preceding 

ture  preceded  by  the  sign  of  the  the  signature  by  the  sign  of  the 

cross.    Those  who  could  not  write  cross   comes  the   modern   practice 

simply  affixed  the  cross.     Indeed,  of  making  a  "mark"  in  that  form 

it  is  said  that  Caedwalla,  one  of  the  by  those  who  are  unable  to  write. 

Saxon  kings,  at  the  end  of  one  of  i*  Truman  v.  Love,  14  Ohio  St. 

his  charters,  honestly  and  frankly  144;    Life    Ins.    Co.    v.    Brown,    30 

says,  "With  my  proper  hand  I  have  N.  J.  Eq.  193;  Sellers  v.  Sellers,  98 

made  and  subscribed  the  sign  of  N.  C.  13. 

the  sacred  cross,  on  account  of  my  ^^  Harris  v.  Harris,  59  Cal.  620. 

ignorance  of  letters;"  and  for  this  le  Mackay    v.    Easton,    19    Wall, 

he  had  the  royal  precedents  of  the  (U.  S.)   619. 

Emperor  Justin   I.    (Byzantine  A.  i^  Seller?  v.  Sellers,  98  N.  C.  13. 
D.  450-527)  and  of  King  Theodoric 


Article  III.     Sealing. 

§  486.     General  views — Definition.      §  488.     Method  of  sealing. 
487.     Necessity  of  seal.  489.     Omission  of  seal. 

i:;  486.  General  views — Definition.  A  seal,  as  definod  by  all 
of  the  earlier  eomnieiilatois  aud  legal  lexicographers,  is  "an 
impression  upon  wax,  wafer  or  some  other  tenacious  sub- 
stance capable  of  being  impressed."  Originally  wax  was 
exclusively  employed  for  this  purpose,^  which  subsequently 
became  in  a  measure  supplanted  by  a  composite  wafer  having 
the  same  general  characteristics.  At  the  present  time  neither 
wax  nor  wafer  is  in  general  use,  as  paper  has  been  found  to 
possess  all  the  essential  qualities  of  both  of  these  articles,  and 
to  be  fully  as  cai)able  of  being  impressed  by  the  devices  now 
in  common  use.  The  convenience  of  wax  was  its  first  and  only 
recommendation;  but  as  it  is  the  impression  and  not  the  wax 
which  constitutes  the  seal,  any  other  adhesive  substance  capa- 
ble of  receiving  an  impression  is  held  to  come  within  the 
defiuition.- 

But  while  any  impression  is  good  as  a  common-law  seal,  the 
general  disuse  of  i)rivate  seals  has  led  to  the  substitution  of 
other  methods  to  indicate  the  fact  of  sealing;  aud  courts,  con- 
forming to  the  changed  conditions  of  the  people,  have  relaxed 
the  ancient  rules  in  this  respect.    A  piece  of  colored  paper 

1  It  would  seem  that  in  England  eating  contracts  and  writings  ap- 
the  wax  originally  employed  was  pears  to  have  been  almost  un- 
white  but  subsequently,  when  vari-  known  in  England  prior  to  the  con- 
ous  colors  were  introduced,  the  quest.  Under  the  Anglo-Saxon  gov- 
king  alone  was  entitled  to  seal  in  ernments,  contracts,  written  dec- 
red,  and  from  this  circumstance  laratlons  and  memorials  were  sol- 
comes  the  traditional  use  of  red  in  emnly  ratified  with  the  sign  of  the 
the  seals  of  courts  and  departments  cross  in  the  presence  of  numerous 
of  government.  witnesses,    and    derived    all    their 

-  Pillow  V.  Roberts,  13  How.   (U.  force  and  efficacy  from  their  pub- 

S.)   473;  Carter  v.  Burley,  9  N.  H.  licity.      The    general    practice    of 

558.    Although  the  custom  of  using  sealingwas  introduced  and  brought 

a  seal  seems  to  have  prevailed  in  into  use  by  the  Normans  after  the 

oriental  nations  from  the  most  re-  conquest,  who  caused  the  ancient 

mote  antiquity  down  to  the  present  Saxon  contracts  and  writings  to  be 

time,  yet  this  method  of  authenti-  sealed    with    waxen    seals    in    the 

575 


576  EXECUTION. 

apparently  aflSxod  as  a  seal,  but  without  impression  or  device 
of  any  kind,  lias  been  held  to  be  a  sufficient  sealing.^  So,  also, 
a  direct  impression  on  the  paper  which  contains  the  writing  is 
now  regarded  as  a  good  and  sufficient  seal;  while  it  is  a  com- 
mon provision  in  the  statutes  of  many  states  that  every  instru- 
ment to  which  the  maker  affixes  a  scroll  by  way  of  seal  shall 
be  of  the  same  force  and  obligation  as  if  it  were  actually 
sealed,  provided  the  maker  shall  in  the  instrument  recognize 
such  scroll  as  having  been  affixed  for  such  purpose.^ 

It  ma}'  be  stated,  however,  that  the  world  has  outgrown  the 
necessities  of  an  age  when  men  affixed  their  seals  because 
•they  could  not  write.  What  then,  from  necessity,  attested  the 
very  act  of  execution  and  the  genuineness  of  it,  is  now  but  a 
mere  arbitrary  form,  preserved  only  as  a  technical  require- 
ment in  support  of  the  long-established  distinction  between 
writings  ''under  seal"  and  those  which  are  not/'  A  seal  does 
not  in  any  way  affect  the  substance  of  the  instrument  or  add 
to  or  detract  from  the  obligation  which  it  purports,  and  in  a 
number  of  states  its  use  has  been  discontinued.  But  in  those 
states  where  the  distinction  between  sealed  and  unsealed 
instruments  has  been  preserved,  while  the  law  has  become 
relaxed  in  favor  of  custom  and  convenience  in  doing  business, 
yet  this  relaxation  is  confined  to  the  manner  of  making  the 
seal  only.  Sealing  and  delivery  is  still  the  criterion  of  a  spe- 
cialty. 

§  487.  Necessity  of  a  seal.  Notwithstanding  that  sealing 
has  now  become  a  matter  of  minor  importance,  both  as  to  the 
seal  itself  and  the  method  of  its  affixment,  yet,  except  where 
it  has  been  expressly  dispensed  with  by  law,  it  is  still  one  of 

presence    of    witnesses,    and    gave  cient  to  comply  with  the  technical 

them    the    names    of    charters    or  requirement  of  law. 

deeds.  *  See   Haseltine  v.   Donahue,   42 

"Turner    v.    Field,    44    Mo.    382.  Wis.  576;  Hudson  v.  Poindexter,  42 

This  is  a  very  instructive  case  on  Miss.  304;  Glasscock  v.  Glasscock, 

this    subject    and    contains    some  8  Me.  577;  Cummins  v.  Woodruff,  5 

very  ingenious  arguments;  as,  for  Ark.  116;    Carter  v.  Penn.  4  Ala. 

instance,  the  court  holds  that  in-  140;    Flemming  v.   Powell,   2  Tex. 

asmuch  as  the  colored  paper,  which  225. 

was  applied  to  a  wafer  and  caused  ^  The  reasoning  of  the  old  law 

to  adhere,  must  from  a  physical  ne-  writers  was,  that  a   seal   attracts 

cessity  have  made  an  impression,  attention    and    excites   caution    in 

such    impression    would    be    sufE-  illiterate  persons  and  thereby  op- 


SEALING.  577 

the  essential  acts  of  execution.  It  is  immaterial  how  the  par- 
ties may  expresH  the  act,  whether  by  a  device  on  wax  or  wafer, 
or  an  impression  on  the  paper,  or  simply  an  arbitrary  mark 
with  the  ])en  upon  the  loci  sigUlum,  provided  it  is  intended 
for  a  seal,  and  to  pve  elTect  to  the  writin<;  as  a  sealed  instru- 
ment. It  is  the  seal,  however,  which  imparts  special  char- 
acter to  the  conveyance,  and  makes  it  in  fact  a  deed."  But 
while  a  paper  purport in<,'  to  be  a  deed  may  not  be  valid  for  the 
purpose  of  conveying  title  unless  it  is  under  seal,  yet  it  seems 
that  when  a  person  enters  into  possession  under  such  a  ])aper, 
it  is  admissible  in  evidence  for  the  purpose  of  showing  the 
extent  of  his  possession,  and  what  he  claims  by  his  posses- 
sion.'^ 

In  a  number  of  states  seals,  except  to  authenticate  the  acts 
of  corporations  and  ministerial  officers,  have  been  dispensed 
with;«  while  in  those  states  in  which  a  seal  is  still  required  to 
deeds  of  conveyance  the  old  doctrine  in  relation  to  their  use 
has  been  greatly  relaxed. 

Nor  is  it  essential,  in  case  of  more  than  one  grantor,  that 
every  person  signing  the  deed  shall  also  formally  seal  it;  and 
a  neglect  in  this  particular  will  not  have  the  effect  to  vitiate 
the  deed,  provided  there  is  evidence  of  an  intention  to  seal. 
In  such  case  the  grantor  neglecting  to  seal  is  presumed  to 
have  adopted  any  seal  or  scrawl  that  may  be  annexed  to  the 
name  of  one  of  his  co-signers. 

i$  488.  Method  of  sealing.  Wax  has  long  since  fallen  into 
disuse  even  in  the  execution  of  documents  of  the  highest  char- 
acter, while  the  old-time  ''signet"  is  preserved  only  as  a 
memento  of  the  past,  the  same  as  any  other  interesting  relic 
of  a  by-gone  age.  The  mass  of  the  people  have  no  distinctive 
devices  by  way  of  seals  which  they  may  use  by  hereditary 
right,  and  few  have  cared  to  adopt  such  devices.  Nor  is  any 
attempt  ever  made  to  fulfill  the  common-law  condition  that  a 

erates  as  a  security  against  fraud,  derwood  v.  Campbell,  14  N.  H.  393. 

0  Taylor  v.  Morton,  5  Dana  (Ky.)  ^  Barger  v.  Hobbs,  67  111.  592. 
365;  Alexander  v.  Polk,  39  Miss.  »  Seals  are  no  longer  required  in 
737;  Taylor  v.  Glaser,  2  S.  &  R.  Alabama,  Arkansas,  California,  Da- 
(Pa.)  502;  and  see  McCabe  v.  kota,  Indiana,  Iowa,  Kansas,  Ken- 
Hunter,  7  Mo.  355;  Jackson  v.  tucky,  Louisiana,  Mississippi,  Mis- 
Wood,  12  Johns.  (N.  Y.)  242;  souri,  Montana,  Nebraska,  Ohio, 
Floyd  V.  Ricks,  14  Ark.  286;   Un-  Tennessee  and  Texas. 

37 


578  EXECUTION. 

seal  must  be  an  "impression;"  while  the  statute  has  practic- 
ally abrogated  the  last  vestige  of  common-law  private  seals 
by  declaring  that  a  "scrawl"  or  "scroll"  shall  be  of  the  same 
effect  and  obligation  as  a  seal  whenever  it  appears  from  the 
body  of  the  instrument,  the  scrawl  itself,  or  the  place  where 
it  is  affixed,  that  such  scrawl  was  intended  for  a  seal.  The 
word  "seal"  at  the  end  of  the  grantor's  signature,  the  letters 
"L.  S.,"  or  any  other  device  manifesting  intent,  will  have  the 
same  effect;  and  generally  an  instrument  will  be  treated  as 
sealed  where  evidence  of  the  intent  to  affix  a  seal  is  clear,^ 

As  to  what  shall  be  considered  a  "scroll,"  there  is  no  rule  or 
precise  definition.  It  may  consist  of  a  mere  outline  without 
any  inclosure;  may  have  a  light  ground  or  a  dark  one;  may 
be  in  the  form  of  a  circle,  an  ellipse  or  an  irregular  figure;  or 
it  may  be  a  simple  dash  or  flourish  of  the  pen.  Its  precise 
form  cannot  be  defined,  and  in  each  case  depends  wholly  upon 
the  taste  or  fancy  of  the  person  who  makes  it.^^ 

It  is  customary  and  proper  to  recite  that  the  grantor  has 
affixed  his  seal,  and  a  well-informed  conveyancer  will  always 
insert  such  a  recital  in  the  testimonium  clause.  While  the 
attestation  clause  usually  consists  of  the  words  "signed  and 
sealed,"  yet  it  is  not  necessary  to  state  in  the  deed  or  in  the 
witnessing  clause  that  the  grantor  has  affixed  his  seal,  in 
order  to  make  a  scrawl  a  seal,  if  it  is  apparent  from  the  instru- 
ment and  the  circumstances  under  which  it  was  executed  that 
it  was  intended  to  adopt  the  scrawl  as  a  seal;^^  and  where  a 
scrawl  is  allowed  for  a  seal,  a  writing  having  the  word  "seal" 
against  the  maker's  signature  is  a  sealed  instrument — ^the 
word  "seal"  in  such  a  case  being  equivalent  to  a  scrawl.^^ 

9  Burton   v.   Le   Roy,   5    Sawyer  West  Virginia  and  Wisconsin,  and 

(C.  Ct.)  510;  McCarley  V.  Supervis-  in    the    territories    generally.      It 

ors,  58  Miss.  483;  Groner  v.  Smith,  would     seem,     however,     that     in 

49   Mo.   318;    Lewis  v.  Overby,   28  Maine,  Massachusetts,  New  Hamp- 

Gratt.  (Va.)  627;  Hudson  v.  Poin-  shire.    New    York,    Rhode    Island, 

dexter,  42  Miss.  304.  But  not  merely  South    Carolina    and    Vermont    a 

because  it  contains  a  recital  that  common-law  seal  is  still  required, 

it  is  sealed.     McCarley  v.   Super-  lo  See  Long  v.  Ramsey,  1  S.  &  R. 

visors,  58  Miss.  483.     A  scrawl  is  (Pa.)   72. 

sufficient  in  the  states  of  Colorado,  n  Burton  v.   Le  Roy,   5  Sawyer 

Connecticut,     Delaware,     Florida,  (C.  Ct.)  510.    In  this  case  a  scroll 

Georgia,   Illinois,  Maryland,  Mich-  made  with  a  pen  inclosing  the  let- 

igan,  Minnesota,  Missouri,  Nevada,  ters  "L.  S."  was  held  to  be  a  seal. 

New  Jersey,  North  Carolina,  Ohio,  i-'  Lewis    v.    Overby,    28    Gratt. 

Oregon,     Pennsylvania,     Virginia,  (Va.)  627. 


SEALING.  570 

Notwithstandiuj;  that  the  iustruiiieiit  UHUulIy  recites  that 
the  grantor  or  person  executing  has  affixed  his  seal,  it  very 
rarely  hapiieiis  that  the  i)arty  executing  Heals  the  wi'iting  with 
his  owu  hands  or  witli  his  own  seal,  the  wafer  or  scrawl  being 
usually  appended  by  the  scrivener  as  part  of  the  clerical  labor 
of  i»repai"ing  the  deed. 

It  would  seem,  therefore,  that  the  method  of  sealing  is 
wholly  immaterial,  provided  the  deed  purports  to  be  a  sealed 
instrument,  and  atfords  evidence  that  it  was  executed  and 
delivered  as  such;  and  usually,  although  not  technically  under 
seal,  if  it  is  otherwise  in  form  it  will  at  least  be  sufficient  to 
convey  an  etjuitable  title,  and,  if  recorded,  affect  those  inter- 
ested with  constructive  notice  of  its  contents  as  fully  as  if 
sealed.^  ^ 

It  has  been  held  that  where  the  record,  made  at  a  time  and 
under  a  law  i)ermittiug  the  registration  only  of  sealed  instru- 
ments, showed  an  instrument  in  fonn  a  proper  deed,  the  con- 
clusion, attestation  and  certificate  of  acknowledgment  all 
speaking  of  it  as  under  seal,  it  will  be  presumcHi  that  the  orig- 
inal was  sealed  ;^^  and  generally,  where  a  deed  has  been  duly 
recorded,  the  existence  of  the  seal  to  the  original  will  be  pre- 
sumed from  the  statements  in  the  concluding  clause  of  the 
instrument  that  the  grantor  affixed  thereto  his  seal,  and  in  the 
attestation  clause  that  the  instrument  was  sealed  in  the  pres- 
ence of  the  witnesses ;^^  and  whether  or  not  it  was  the  legal 
duty  of  the  recorder  to  indicate  upon  the  record  whether  the 
instrument  was  sealed,  his  omission  to  do  so  will  not  overcome 
the  i)resumption.'*'' 

§  489.  Omission  to  seal.  A  deed  without  a  seal  is  technic- 
ally defective,  yet  not  so  much  so  as  to  render  it  nugatory; 
for  the  rule  is  well  settled  that  a  defective  conveyance  is  still 
sufficient  to  bind  the  lands  conveyed  in  the  hands  of  the 
grantor  and  his  heirs,  and  that  e(piity  will  interpose  for  the 
relief  of  a  vendee  who  has  taken  under  a  defective  convey- 
ance, and  compel  tlie  grantor  and  all  who  claim  under  him 
through  operation  of  law,  as  well  as  subsetpu-ut  purchasers 

13  Grandin  v.  Hernandez,  29  Hun  i"'  Le  Franc  v.  Richmond,  5  Saw- 

(N.  Y.)  399.  yer  (C.  Ct.)  601. 

i<  Starkweather    v.     Martin,     28  i«  Starkweather    v.     Martin,     28 

Mich.  471.  Mich.  471. 


580  EXECUTION. 

with  notice,  to  make  good  the  title.i'^  Such  an  instrument 
would  not  in  many  cases  be  allowed  to  operate  as  a  deed,  but 
it  would  in  all  cases  be  construed  as  a  valid  written  contract 
conveying  an  equitable  title  ;'^  and  where  it  appears  that  the 
seal  was  omitted  by  mistake,  or  where  a  plain  intent  to  affix 
a  seal  is  manifest,  it  has  been  held  that  a  court  of  equity,  in 
order  to  carry  out  the  intention  of  the  grantor,  will,  at  the  suit 
of  those  who  are  justly  and  equitably  entitled  to  the  benefit  of 
the  instrument,  adjudge  it  to  be  as  valid  as  if  it  had  been 
sealed,  and  will  grant  relief  accordingly,  either  by  compelling 
the  seal  to  be  affixed,  or  by  restraining  the  setting  up  of  the 
want  of  it  to  defeat  a  recovery  at  law.^^ 

17  Mastin  v.  Halley,  61  Mo.  199.  Haughton,  7  Conn.  543 ;    Green  v. 

isBrinkley   v.    Bethel,    9   Heisk.  R.  R.  Co.  12  N.  J.   Eq.  165;   Rut- 

(Tenn.)  789.  land  v.  Paige,  24  Vt.  181;  McCarley 

19  Bernard's    Township   v.    Steb-  v.  Supervisors,  58  Miss.  486. 
bins,   109  U.  S.  349;    Montville  v. 


Article  IV.     Delivery. 


490. 

General  principles. 

§498. 

Sufficiency   of   proof   of  de- 

491. 

Theory  of  delivery. 

livery. 

492. 

Intention   the   vital   princi- 

499. 

Delivery  to  infant. 

ple  of  delivery. 

500. 

Delivery  to  third  person. 

493. 

Presumption  of  time  of  de- 

501. 

Delivery  to  take  effect  after 

livery. 

death  of  grantor. 

494. 

Presumption    from    record- 

502. 

Continued  —  Testamentary 

ing. 

deeds. 

495. 

Presumption    from    posses- 

503. 

Deed  retained  by  grantor. 

sion  of  instrument. 

504. 

When    grantor   will    be   es- 

496. 

Presumptions     in    case    of 

topped. 

voluntary  deeds. 

505. 

Revocation  and  redelivery. 

497. 

No  presumption   from   exe- 

506. 

Delivery  in  escrow. 

cution. 

507. 

Acceptance. 

§  490.  General  principles.  It  is  a  fundamental  rule,  estab- 
lished and  confirmed  by  the  entire  current  of  ancient  and 
modern  authority,  that  to  constitute  a  valid  transfer  of  the 
title  to  land  by  grant  there  must  be  a  delivery  of  the  deed  or 
instrument  purporting  to  convey  the  same.^  That  is,  the  deed 
must  pass  from  the  grantor  to  the  grantee,  or  to  some  third 
person  for  him,  in  such  a  manner  as  to  preclude  the  grantor 
from  recalling  same  and  with  the  intent  that  it  shall  pres- 
ently operate  as  a  transfer  of  the  grantor's  rights.  This  is 
regarded  as  the  final  act  which  consummates  and  confirms  the 
conveyance,  without  which  all  other  formalities  are  inef- 
fectual;- and  though  a  deed  may  be  duly  executed,  and  in  all 
other  respects  i)erfect,  yet,  while  remaining  undelivered  in  the 
hands  or  under  the  control  of  the  grantor,  it  passes  no  title.^ 


1  Mitchell  v.  Bartlett,  51  N.  Y. 
447;  Stiles  v.  Brown,  16  Vt.  563 
Tisher  v.  Beckwith,  30  Wis.  55 
Oliver  v.  Stone,  24  Ga.  63;  Arm 
strong  V.  Stovall,  26  Miss.  275 
Overmann  v.  Kerr,  17  Iowa  486 
Rountree  v.  Little,  54  111.  323;  Can 
non  v.  Cannon,  26  N.  J.  Eq.  316 
Jones  V.  Jones,  9  Conn.  Ill;  Critch 
field  V.  Critchfield,  24  Pa.  St.  100; 
Barr  v.  Schroeder,  32  Cal.  610. 


2  Williams  v.  Baker.  71  Pa.  St. 
476;  Borland  v.  Walrath,  33  Iowa 
130;  Rowland  v.  Blake,  97  U.  S. 
624;  Brown  v.  Brown,  66  Me.  316; 
Tisher  v.  Beckwith,  30  Wis.  55; 
Cook  V.  Brown,  34  N.H.  476;  Fisher 
V.  Hall,  41  N.  Y.  421;  Hoboken 
Bank  v.  Phelps,  34  Conn.  103;  Por- 
ter V.  Woodhouse,  59  Conn.  568. 

•■' Byars  v.  Spencer,  101  111.  427; 
Egery    v.    Woodard,    56    Me.    45; 


581 


582 


EXECUTION. 


To  impart  validity  there  must  be  a  manifestation,  either  by 
act  or  declaration,  of  an  intention  on  the  part  of  the  grantor 
to  give,  and  a  reciprocal  intention  on  the  part  of  the  grantee 
to  take,  and  it  is  only  by  the  joint  concurrence  of  these  inten- 
tions that  the  devolution  of  title  becomes  complete.* 

Yet  though  delivery  is  essentially  a  solemn  observance  it 
is  by  no  means  a  formal  one,^  and  no  particular  act  or  set 
phrase  of  speech  is  necessary  to  constitute  a  legal  transfer. 
A  valid  delivery  may  be  effected  by  simply  handing  the 
instrument  to  the  grantee,^  or  to  some  third  person  for  him,"^ 
or  it  may  be  legally  delivered  without  being  actually  handed 
over,  provided  by  declaration  or  other  act  it  may  be  inferred 
that  the  grantor  intended  to  part  with  the  title  ;^  and  if  once 
delivered  its  retention  by  the  grantor  will  not  invalidate  the 
conveyance  nor  affect  the  title  of  the  grantee.^  A  delivery 
will  be  presumed  where  the  deed  has  been  left  by  the  grantor 
with  the  proper  officer  for  record,^  ^  q^  j^^y  -^q.  inferred  from 
the  fact  that  it  is  found  in  the  possession  of  the  grantee,  unat- 
tended by  any  controlling  circumstances  to  the  contrary j^^ 

Fisher  v.  Hall,  41  N.  Y.  416;  Bur-  other  is  not  absolutely  essential  in 
ton  V.  Boyd,  7  Kan.  17;    Duer  v.    any  case.    Weber  v.  Christen,  121 


James,  42  Md.  492^;  but  see  Wall  v. 
Wall,  30  Miss.  91;  Prutsman  v. 
Baker,  30  Wis.  644;  Alsop  v.  Swat- 
hel,  7  Conn.  503. 

■tCline  V.  Jones,  111  111.  563; 
Bears  v.  Spencer,  101  111.  433; 
Woodbury  v.  Fisher,  20  Ind.  388; 
Parker  v.  Hill,  8  Met.  (Mass.)  447; 
Parmlee  v.   Simpson,  5   Wall.    (U. 


111.  91. 

c  Bogie  V.  Bogie,  35  Wis.  659. 

7  Henrichsen  v.  Hodgen,  67  111. 
179;  Stephens  v.  Rinehart,  72  Pa. 
St.  434;  Brown  v.  Brown,  66  Me. 
316;  Hinson  v.  Bailey,  73  Iowa  544; 
Hamilton  v.  Armstrong,  120  Mo. 
597. 

8  Tallman  v.  Cooke,  39  Iowa  402; 


S.)  81;  Eames  v.  Phipps,  12  Johns.  Walker  v.  Walker,  42  111.  311;  Mar- 
(N.  Y.)  418;  Bullitt  v.  Taylor,  34  tin  v.  Flaherty,  13  Mont.  96;  Comp- 
Miss.    708;    Rittenmaster   v.    Bris-    ton  v.  White,  86  Mich.  33;  Fisher 


bane,  19  Cal.  371. 

5  The     ordinary     and     simplest 
mode  of  delivery  is  the  actual  tra- 


V.  Hall,  41  N.  Y.  416. 

9  Wallace  v.  Berdell,  97  N.  Y.  13; 
Burkholder  v.  Cased,  47  Ind.  418; 


dition  or  manual  transfer  of  the  Albert  v.   Burbank,   25   N.   J.   Eq. 

instrument  from  the  grantor  to  the  404 ;  Thomas  v.  Groesbeck,  40  Tex. 

grantee  for  the  purpose  and  with  530;  Reed  v.  Douthit,  62  111.  348. 
the  intention  of  passing  the  title       lo  Himes  v.  Keighblinger,  14  111. 

from  the  former  to  the  latter,  and  469;    Counard  v.  Calgan,  55   Iowa 

of  relinquishing  all  power  and  con-  538;    Mallett  v.   Page,    8   Ohio    St. 


trol    over    the    instrument    itself. 
But  the  actual  passing  of  the  deed 


367. 


Ji  Newlin  v.  Beard,  6  W.  Va.  110; 


from  the  hands  of  the  one  to  the    Brittain  v.  Work,  13  Neb.  347. 


DELIVERY.  583 

and,  ji^cncrMlly,  aiiytliin<;  done  by  tlic  j^rantoi-  from  which  it  is 
ai)itar('ii(  that  a  delivery  was  iiiteudod,  either  words  or  acts  or 
both  combined,  is  sutlicient,^^ 

To  the  foregoing  j;eneral  rule  there  is,  however,  one  excep- 
tion, and  this  occurs  in  the  case  of  conveyances  of  orij^inal 
title  by  the  state  or  general  governments.  In  such  instances, 
unlike  conveyances  between  individuals,  a  formal  delivery  of 
the  patent  is  not  essential  to  its  validity,  nor  will  the  non- 
delivery defeat  the  grant.  When  a  patent  has  been  duly  exe- 
cuted and  recorded  in  the  general  laud  oHlce,  it  becomes  a 
soleimn  public  act  of  the  government  and  needs  no  fui-ther 
delivery  to  make  it  perfect  and  valid,  and  the  title  to  the  land 
conveyed  passes  by  matter  of  record  to  the  grantee.^ ^  Nor  is 
it  necessarj'  in  such  case  that  there  should  be  a  formal  accept- 
ance on  the  part  of  the  grantee,  for  the  acts  required  to  be 
done  by  him  in  the  preparation  of  his  claim  are  equivalent  to 
a  positive  demand  for  the  patent;  and  although  no  one  can 
be  compelled  by  the  government,  any  more  than  by  an  indi- 
vidual, to  become  a  purchaser,  or  even  to  take  a  gift,  yet, 
where  there  is  no  dissent,  the  assent  and  acceptance  of  the 
patentee  are  always  presumed  from  the  beneficial  nature  of 
the  grant.i* 

Where  no  place  is  fixed  for  the  delivery  of  the  deed  by  the 
articles  of  agreement,  the  vendor  is  bound  to  seek  the  vendee 
and  make  a  tender,  or,  if  the  vendee  appoint  a  place,  the 
vendor  may  tender  it  there.^'"' 

V?  491.  The  theory  of  delivery.  No  small  degree  of  the  im- 
portance attached  to  the  delivery  of  the  deed  in  modern  con- 
veyancing arises  from  the  fact  that  the  deed  has  taken  the 

12  Burkholder  v.  Cased,   47   Ind.  Saw.    (C.   Ct.)    369;    Houghton    v. 

418;    Tallman   v.    Cooke,   39    Iowa  Hardenberg,  53  Cal.  181;   Gilmore 

402;    Duer  v.  James,  42  Md.  492;  v.  Sapp.  100  III.  279. 

Warren   v.   Sweet,   31   N.  H.   332;  n  Le  Roy  v.  Jamison,  3  Saw.  (C. 

Brown    v.    Brown,    66    Me.    316;  Ct.)  369;  Green  v.  Liter,  8  Cranch 

Thatcher  v.  St.  Andrew's  Church,  (U.    S.)     247;     Gilmore    v.    Sapp. 

37  Mich.  264;  Cannon  V.  Cannon.  26  100      111.      279;       Pierre      Mutelle 

N.  J.  Eq.  316;    Hatch  v.  Hatch.  9  Case,    3    Op.  Atty.-Gen.    654;     and 

Mass.  309;  Rivard  v.  Walter,  39  111.  see     Warvelle     on     Abstracts     of 

415;   Mitchell  v.  Ryan,  3  Ohio  St.  Title.  127,  for  an  exposition  of  the 

377.  doctrine   of   governmental   grants. 

i«  United  States  v.   Schurz,  102  m  Fanchot  v.  Leach,  6  Cow.  (N. 

U.  S.  378;   Le  Roy  v.  Jamison,  3  Y.)    506. 


584  EXECUTION. 

place  of  the  ancient  livery  of  seizin  in  feudal  times,  when,  in 
order  to  give  effect  to  the  enfeoffment  of  the  new  tenant,  the 
act  of  delivering  possession  in  a  public  and  notorious  manner 
was  the  essential  evidence  of  the  investure  of  the  title  to  the 
land.  This  became  gradually  diminished  in  importance  until 
the  manual  delivery  of  a  piece  of  turf,  or  any  other  equally 
symbolical  act,  became  sufficient.  When  all  this  jiassed  away, 
and  the  creation  and  transfer  of  estates  by  a  written  instru- 
ment called  the  act  or  deed  of  the  party  became  the  usual 
mode,  the  instrument  was  at  first  delivered  on  the  land  in  lieu 
of  livery  of  seizin,^^  until  finally  any  delivery  of  the  deed,  or 
any  act  which  the  party  intended  to  stand  for  such  delivery, 
became  effectual  to  pass  the  title.^'^ 

§  492.  Intention  the  vital  principle  of  delivery.  The  ques- 
tion of  the  delivery  of  a  deed  is  always  one  of  intention  ;^^  and 
the  mere  fact  that  an  instrument  of  conveyance  has  passed 
from  the  hands  of  the  owner  of  the  property  to  the  party 
named  therein  as  grantee  does  not  in  itself  constitute  or 
establish  a  delivery .^^  There  must  exist  as  well  the  intention 
to  convey,2o  and  this  intention  seasonably  manifested  must 
always  control.  So  again,  the  simple  fact  that  the  instrument 
still  remains  in  the  possession  of  the  grantor  does  not  neces- 
sarily imply  that  there  has  not  been  a  delivery,  for  here,  as  in 
the  former  case,  the  question  of  intent  comes  in  to  govern; 
and  where  the  circumstances  show  unmistakably  that  the 
grantor  intended  to  divest  himself  of  title  and  to  invest  the 
same  in  the  grantee  the  delivery  will  still  be  complete.^i 
Indeed,  anything  which  clearly  manifests  the  intention  of  the 
grantor  and  the  person  to  whom  it  is  delivered  that  the  deed 
shall  presently  become  operative  and  effectual  will  constitute 

16  Shep.  Touch.  64;  Coke  on  Litt.  Ruckman,  32  N.  J.  Eq.  259;  Hast- 
266b.  ings  v.  Vaughn,  5  Cal.  315;  Martin 

17  Church  V.   Oilman,   15  Wend.    v.  Flaherty,  13   Mont.  96. 

656;   Warren  v.   Levitt,  11  Foster  if  Henry  v.  Carson,  96  Ind.  412; 

(N.  H.)    340;    Hatch  v.    Hatch,   9  .Jordan  v.  Davis,  108  111.  336;  Wil- 

Mass.  306.  son  v.  Wilson,  158  111.  567. 

18  Walker  v.  Walker,  42  111.  311;  -'o  Wilson  v.  Wilson,  158  111.  567. 
Nicol  V.  Davidson,  3  Tenn.  Ch.  547;  -i  Ruckman  v.  Ruckman,  32  N. 
Gregory  v.  Walker,  38  Ala.  26;  J.  Eq.  259;  Scrugham  v.  Wood,  15 
Somers  v.  Pumphrey,  24  Ind.  231;  Wend.  (N.  Y.)  545;  McLure  v.  Col- 
Rogers  v.  Cary,  47  Mo.  235;  Duer  clough,  17  Ala.  96;  Otis  v.  Spencer, 
V.  James,  42  Md.  492;  Ruckman  v.  102  111.  622. 


DELIVERY. 


585 


a  sufficient  delivery  even  though  retained  by  neither  party  to 
it.22 

Act  and  intention  are  the  two  elements  or  conditions  essen- 
tial to  a  deli  wry  of  a  deed.  The  act  may  be  a  niauual  transfci' 
of  the  instrument,  with  or  without  accompanying  words,  or  it 
may  be  a  purely  verbal  act,  as  when  the  grantee  is  siinj)ly 
directed  to  go  and  get  the  deed  already  prepared  for  him;  but 
it  is  the  intention  which  gives  vitality  to  the  act,  whatever 
that  may  be.-"^  The  crucial  test  in  all  cases  is  the  intent  with 
which  the  act  or  acts  relied  on  as  the  ecpiivaleut  or  substitute 
for  actual  delivery  were  done;  and  this  intent  is  to  be  gath- 
ered from  the  conduct  of  the  parties,  particularly  of  the 
grantor,  and  all  the  surrounding  circumstances.-^ 

§  493.  Presumption  of  time  of  delivery.  It  is  not  custom- 
ary to  insert  in  the  draft  of  a  deed  the  time  of  its  delivery; 
and  this  essential  point  has,  from  necessity,  been  made  to 
depend  largely  on  presumption.  Ordinarily  a  deed  will  be 
presumed  to  have  been  delivered  on  the  day  of  its  date,^^  or, 


22  As  where  a  deed  has  been  prop- 
erly signed,  sealed,  attested  and 
acknowledged  in  the  presence  of 
both  parties  and  the  certifying  of- 
ficer, and  then  left  by  the  grantor 
with  such  officer  and  never  called 
for  (Jamison  v.  Craven,  4  Del.  Ch. 
311),  or  where  a  grantee  to  whom 
and  in  whose  presence  a  deed  had 
been  made  directed  the  notary  who 
drew  it  to  send  it  to  the  recorder 
for  registration,  but  the  notary  put 
the  deed  in  his  safe  and  forgot 
about  it  (Adams  v.  Ryan,  61  Iowa 
733),  held  good  deliveries  on  the 
day  the  deeds  were  made.  So,  too, 
where  the  grantor  in  a  deed  lying 
in  the  presence  of  the  parties  to  it, 
with  the  intention  of  passing  the 
estate  and  of  divesting  himself  of 
all  power  over  the  instrument  it- 
self, directs  the  grantee  to  take 
possession  of  it,  and  the  latter  sig- 
nifies his  assent,  the  delivery  will 
be  complete  without  either  party 
actually  touching  the  deed.  Weber 


V.  Christen,  121  111.  91.  And  see 
Jackson  v.  Sheldon,  22  Me.  569; 
Walker  v.  Walker.  42  111.  311;  Arm- 
strong v.  Stovall,  26  Miss.  275; 
Burkholder  v.  Casad,  47  Ind.  418; 
Dayton  v.  Newman,  19  Pa.  St.  194; 
Martin  v.  Flaherty,  13  Mont.  96; 
Woodward  v.  Comp.  22  Conn.  459; 
Rosseau  v.  Bleau,  131  N.  Y.  177. 

^^Cline  V.  Jones,  111  111.  563; 
Ruckman  v.  Ruckman,  32  N.  J.  Eq. 
259;  Warren  v.  Swett,  31  N.  H.  332; 
Stevens  v.  Hatch,  6  Minn.  64;  Por- 
ter V.  Woodhouse,  59  Conn.  568. 

24  Weber  v.  Christen,  121  111.  91. 
where  a  deed  executed  to  a  bank 
was  handed  by  the  notary  to  one 
of  the  directors,  who  was  instructed 
by  the  grantor  that  the  deed  was 
not  to  be  delivered  to  the  bank 
until  certain  disputes  between 
grantee  and  grantor  were  settled. 
Held,  that  there  was  no  delivery. 
Healdsburg  v.  Bailbachi,  65  Cal. 
327. 

25  Billings  v.  Stark,  15  Fla.  297; 


586  EXECUTION. 

in  the  absence  of  any  date,  at  the  time  of  its  acknowledgment. 
This  presumption,  however,  is  one  of  convenience  only — it  is 
never  conclusive,-*^  and  the  true  date  of  delivery  may  always 
be  shown  by  evidence  aliunde,  ^7  the  testimony  of  a  single 
witness  being  sufficient  for  this  purpose. 

It  has  been  held  that,  where  the  date  of  the  acknowledg- 
ment is  subsequent  to  the  date  given  in  the  body  of  the  deed, 
there  is  no  presumption  of  delivery  prior  to  the  acknowledg- 
ment;-^ and  it  is  not  to  be  denied  that  such  decisions  rest 
upon  plausible  grounds,  but  the  volume  of  authority  does  not 
sustain  this  doctrine.  The  date  of  execution,  therefore,  in  the 
absence  of  other  proof  to  the  contrary,  and  except  where  con- 
trolled by  local  decisions,  may  still  be  taken  as  the  true  date 
of  delivery,  and  not  the  date  of  acknowledgment,  which,  as  a 
matter  of  convenience,  may  well  have  been  made  afterwards.^^ 
An  acknowledgment  subsequent  to  the  date  of  the  deed  is  not 
inconsistent  with  the  theory  of  a  prior  delivery ,3<^  for  it  may 
often  happen  that  a  deed  is  delivered  and  accepted  with  intent 
to  have  it  acknowledged  at  some  future  time;^^  and  in  one 
instance  a  court  has  gone  so  far  as  to  say  that  a  subsequent 
acknowledgment  is  of  itself  evidence  of  a  prior  delivery .^2 

§  494.  Presumption  from  recording.  The  vital  principle  of 
delivery  is  the  reciprocal  intention  to  give  and  to  receive; 

Meach  v.  Fowler,  14  Ark.  29 ;  Dein-  lings  v.  Stark,  15  Fla.  297. 

inger   v.    McConnell,    41    111.    228;  so  Raines  v.  Walker,  77  Va.  92; 

Treadwell  v.  Reynolds,  47  Cal.  171;  Clark  v.  Akers,  16  Kan.  166. 

Harman   v.   Oberdorfer,   33   Gratt.  -i  Harmon     v.     Oberdorfer,     33 

(Va.)    497;    Raines  v.   Walker,   77  Gratt.  (Va.)  502. 

Va.  92;  Ellsworth  v.  R.  R.  Co.  34  ^2  pord  v.  Gregory,   10  B.  Mon. 

N.  J.  L.  93;  Wheeler  v.  Single,  62  (Ky.)    180.     The   fact  of   delivery 

Wis.   380;    Robinson  v.   Gould,   26  is  usually  mentioned  in  the  attes- 

lowa  89.  tation  of  witnesses,  but  is  not,  as 

26  Whitman  v.  Henneberry,  73  a  rule,  alluded  to  in  the  certificate 
111.  109.  of    the   officer   who   takes  the   ac- 

27  Treadwell  v.  Reynolds,  47  Cal.  knowledgment;  yet  as  the  parties 
171;  Eaton  v.  Trowbridge,  38  Mich,  acknowledge  "execution,"  and  as 
454.  delivery  may  properly  be  held  to 

28  Fontaine  v.  Savings  Institu-  be  a  part  of  the  execution,  and 
tion,  57  Mo.  553;  Brolasky  v.  Fu-  necessary  to  its  validity,  the  reason 
rey,  12  Phil.  (Pa.)  428;  Johnson  of  the  last  citation  may  be  seen. 
V.  Moore,  28  Mich.  3;  Henry  v.  As  certificates  are  sometimes 
Bradshaw,  20  Iowa  255.  drawn  the  facts  of  execution  are 

20  People  V.  Snyder,  41  N.  Y.  402;  stated,  as,  that  the  grantor  ac- 
Hardin  v.  Osborne,  60  111.  93;   Bil-    knowledged  that  he  "signed,  sealed 


DELIVERY.  58'}' 

hence,  as  has  been  hIiowii,  actual  iiiauiial  delivery  \h  not  essen- 
tial to  a  valid  lej^al  act,  and  cireunistances  which  tend  to  show 
this  intention  may  be  received  as  evidence  of  the  fact.  For 
this  reason  the  re<;istry  of  a  deed  by  the  j^rantor  is  entitled  to 
great  consideration,  and  may,  under  favorable  circumstances, 
or  in  the  absence  of  opposing  evidence,  justify  the  presump- 
tion of  a  delivery.^"'  The  j)reHumption  is  not  conclusive,  how- 
ever, and  may  be  repelled  by  any  inconsistent  facts,  as  where 
the  grantee  had  no  knowledge  of  the  existence  of  the  deed,  and 
the  property  which  it  i)urported  to  convey  always  remained 
in  the  possession  and  under  the  control  of  the  grantor ;•''•*  yet, 
ordinarily,  the  recording  of  the  instrument  not  only  affords 
prima  facie  evidence  of  delivery,  but,  when  i)roperly  executed 
and  acknowledged,  raises  a  legal  presumption  of  that  fact;^"' 
and  generally  a  delivery  will  be  presumed,  in  the  absence  of 
direct  evidence  of  the  fact,  from  concurrent  acts  of  the  parties 
recognizing  a  transfer  of  title.^® 

The  record  of  a  deed  not  only  indicates  delivery,  but,  where 
to  the  grantee's  advantage,  an  acceptance  as  well;^'^  and 
where  the  grantor  in  a  deed  not  actually  delivered  causes  the 
same  to  be  recorded,  this  will  constitute  a  sufficient  delivery 
to  enable  the  grantee  to  hold  the  land  as  against  the  grantor.^^ 
But  while  the  recording  of  a  deed  may  ailord  at  least  prima 
facie  evidence  of  delivery  and  acceptance,  this  must  be  under- 

and  delivered"  the  deed.     In  such  3.';  Kille   v.   Ege,    79   Pa.   St.   15; 

event  the  certificate  may  fairly  be  Alexander    v.    Alexander,    71    Ala. 

said  to  evidence  a  prior  delivery.  295;   but  see  Boyd  v.  Slayback,  63 

33  Younge   v.    Guilbeau,    3    Wall.  Cal.  493. 

(U.S.)  636;  Himes  v.  Keighblinger,  3o  Thus,  where  a  deed  had  been 

14  111.  469;  Burkholder  v.  Cased,  47  executed  and  recorded  without  the 

Ind.  418;   Kille  v.  Ege.  79  Pa.  St.  knowledge  of  the  grantee,  who  sub- 

15;    Counard   v.   Colgan,    55    Iowa  sequently  executed  a  conveyance  to 

538;    Elsberry  v.    Boykin,   65   Ala.  a  third  party,  this  recognition  by 

336;  Moore  v.  Giles,  40  Conn.  570;  both  parties  of  the  transfer  of  the 

Rowell    V.    Hayden,    40    Mo.    582;  title   would   be   suflBcient  evidence 

Wellborn   v.  Weaver,   17  Ga.   267;  that  at  the  time  a  delivery  of  the 

Bullitt  v.   Taylor,   34   Miss.   708.  deed  had  been  made.  Gould  v.  Day, 

f*  Younge   v.   Guilbeau,    3    Wall.  4  Otto  (U.  S.)   405. 

(U.  S.)   636;   Wiggins  v.  Lusk,  12  st  Metcalfe  v.  Brandon,  60  Miss. 

111.   132;    Leppack  v.  Union  Bank,  685;  Masterson  v.  Cheek.  23  111.  73; 

32  Md.  136;  Knolls  v.  Barnhart,  71  Cecil  v.  Beaver,  28  Iowa  241. 

N.  Y.  474;   Jefferson,  etc.  Assoc,  v.  ^s  Kerr   v.    Birnie,   25   Ark.   225; 

Hell,  81  Ky.  513.  Dale  v.  Lincoln.  62  111.  22;  Kings- 


688  EXECUTION. 

(stood  as  iipplyiug-  only  to  ii  deed  simply  conveying  tlie  prem- 
ises, and  not  to  one  whiitli  imposes  an  obligation  on  the 
grantee  or  creates  an  assumption  on  liis  part  in  regard  to  pre- 
existing incumbrances.*^'^ 

As  before  remarked,  however,  the  recording  of  a  deed  raises 
no  conclusive  presumption ;*"  and  where  a  grantor  has,  with- 
out the  knowledge  of  the  grantee,  caused  a  deed  to  be 
recorded,  which  afterwards  has  been  returned  to  him  and  by 
him  retained,  the  question  as  to  whether,  as  a  matter  of  law, 
there  has  been  a  delivery,  is  one  which  it  seems  has  puzzled 
courts  to  decide.^i  The  voluntary  record  of  a  deed,  absolute 
in  form  and  beneficial  to  the  grantee,  is  ordinarily  a  good 
delivery;  yet,  as  delivery  is  essentially  a  question  of  intent, 
and  as  a  delivery  without  an  intent  to  deliver  is  no  delivery 
in  law,^-  the  embarrassment  of  the  question  is  manifest.^^ 

The  presumption  of  delivery  of  a  deed  arising  from  its 
being  recorded  is  rebutted  by  proof  that  the  grantee  never 
was  in  possession  nor  claimed  under  the  deed;  that  the  land 
was  valuable  only  for  its  use  and  occupation;  and  that  the 
grantor,  his  heirs  and  representatives  have  remained  in  undis- 
turbed possession  for  more  than  the  period  covered  by  the 
statute  of  limitation,  without  recognizing  any  rights  under 
the  deed.  Non-delivery  by  the  grantor,  or  a  reconveyance,  is 
then  presumed;'**  or  it  may  be  presumed,    either    that    the 

bury    V.     Burnside,     58     111.     310;  wife    did    not    sufficiently    appear 

Palmer  v.  Palmer,  62  Iowa  470.  from  these  facts.     McGraw  v.  Mc- 

ao  Thompson    v.    Dearborn,    107  Graw,  79  Me.   257.     So,  also,  in  a 

111.  87.  case   where    the    grantor,    for   the 

40  Jefferson,  etc.  Assoc,  v.  Heil,  purpose  of  placing  his  land  beyond 
81  Ky.  513.  the  reach  of  his  creditors,  made  a 

41  See  Vaughn  v.  Goodman,  94  deed  to  his  nephews,  one  of  whom 
Ind.  191;  Alexander  v.  Alexander,  was  an  infant.  There  was  no  man- 
71  Ala.  295.  ual    delivery,    although   the   neph- 

42  Jordan  v.  Davis,  108  111.  336.  ews,  when  informed  of  the  trans- 

43  A.,  for  the  purpose  of  protect-  action,  assented  thereto;  the  grant- 
ing himself  against  judgments,  con-  or,  however,  retained  the  custody 
veyed  land  through  a  third  person  and  control  of  the  deed.  Held,  that 
to  his  wife.  A.  caused  the  deeds  there  was  no  delivery.  Weber  v. 
to  be  recorded  and  kept  them  him-  Christen,  121  111.  91. 

self  until  he  died.    Held,  in  a  suit        44  Knolls  v.  Barnhart,  71  N.  Y. 
between  A.'s  wife  and  A.'s  children,    474. 
that  a  delivery  of  the  deed  to  the 


DELIVERY.  680 

<;raiilt'(*  never  accei)ted  the  deed  or  liad  reliuquiHlied  any  claim 
thereuuder,^"' 

§  495.  Presumption  from  possession  of  instrument.  Pos- 
session has  ever  been  rej^arded  as  one  of  the  strongest  evi- 
dences of  owuersliip.  The  principle  is  practically  unlimited  in 
its  application,  and  carries  with  it  as  a  corollary  the  further 
principle  that  such  ownership  had  its  origin  in  a  claim  of 
right.  Acting  upon  this  principle  the  possession  and  produc- 
tion of  a  properly-executed  deed  by  the  grantee  therein  named 
raises  a  presumption,  in  the  absence  of  any  controlling  cir- 
cumstances to  the  contrary,  that  the  same  was  legally  deliv- 
ered j^**  and  only  clear  and  convincing  evidence  can  overcome 
this  presumption.^^  Still  the  question  of  delivery  is  a  ques- 
tion of  intent,  and  a  delivery  without  the  intent  to  deliver  is 
not  a  delivery  in  law;"***  therefore,  where  it  is  found  as  a  fact 
that  a  deed  was  never  delivered,  it  is  void  although  it  came 
into  the  possession  of  the  person  named  therein  as  grantee 
and  was  recorded.^'-*  Cases  very  frequently  arise  where  the 
deed  is  handed  to  the  grantee  for  inspection,  or  for  some  tem- 
porary purpose,  where  there  is  no  completion  of  the  transfer 
and  no  intention  of  giving  the  deed  effect,  and  in  such  cases 
there  is  no  valid  delivery.^<* 

§  496.  Presumptions  in  case  of  voluntary  deeds.  It  would 
seem  that  the  law  makes  stronger  presumptions  in  favor  of 
the  delivery  of  deeds  in  cases  of  voluntary  conveyance  than  in 
ordinary  cases  of  bargain  and  sale,^i  and  the  authorities  go 

■45  TrafEord  v.  Austin,  3  Tenn.  Ch.  evidence  of  its  delivery  was  inap- 

492.  plicable,  plaintiff  not  appearing  to 

40  Wallace  v.  Berdell,  97  N.  Y.  13;  be  the  grantee.^ 

Newlin   v.   Beard,   6   W.   Va.   110;  47  McCann  v.   Atherton,   106   111. 

Brittain    v.    Work,    13    Neb.    347;  31;   Simmons  v.  Simmons,  78  Ala. 

Tunnison    v.    Chamberlin,    88    111.  365.      Jhe    presumption    may    be 

379;    Butrick  v.  Tilton,  141  Mass.  overcome  by  proof   of   fraud,   but 

93;   Simmons  v.  Simmons,  78  Ala.  such  proof  must  be  clear  and  ex- 

365.  ^^In  Andrews  v.  Dyer,  78  Me.  plicit.    Cover  v.  Manaway,  115  Pa. 

427,     which    was    a    real     action  St.  338.' 

brought  by  the  plaintiff  Melissa  A.,  *«  Jordan  v.  Davis.  108  111.  336; 

who    claimed    title    under    a    deed  Cherry  v.  Herring.  83  Ala.  458. 

from   her   deceased   husband    run-  •»»  Dwinell  v.  Bliss,  58  Vt.  353. 

ning  to  Mercy  A.,  it  was  ?icld  that  '-o  Gilbert  v.   Ins.   Co.,   23    Wend, 

the  rule  that  the  production  of  a  (N.  Y.)   43. 

deed  by  the  grantee  is  prima /acie  m  Reed  v.   Douthit.   62   111.   348; 


500  EXECUTION. 

far  to  establish  the  proposition  that  au  iustriiment  may  be 
good  as  a  voluntary  settlement  even  though  it  be  retained  by 
the  grantor  in  his  possession  until  his  death.^^  j>^q  cases  in 
this  respect,  however,  are  generally  attended  with  the  quali- 
fication that  there  shall  be  no  circumstances  besides  the  mere 
fact  of  retaining  the  instrument  to  show  that  the  executing 
party  did  not  intend  it  to  operate  immediately,  or  to  denote 
an  intention  contrary  to  that  appearing  upon  the  face  of  the 
deed.  But  notwithstanding  the  deed  purports  to  be  an  abso- 
lute conveyance  of  the  grantor's  entire  interest  in  presenti, 
if  it  nevertheless  appears  that  such  deed  was  not  intended  to 
be  absolute,  but  to  be  qualified  in  effect  ;^3  or  if  it  appears  that 
it  was  not  intended  to  convey  the  grantor's  whole  interest, 
but  to  leave  in  him  a  life  estate  or  some  other  interest;  or 
that  it  was  not  intended  to  operate  presently,  but  only  upon 
the  grantor's  death,^^  or  the  doing  of  some  particular  act  or 
happening  of  a  certain  contingency — then  the  presumption 
ceases,  and  the  fact  that  the  grantor  has  kept  the  deed  in  his 
own  possession  becomes  indicative  of  non-delivery .^^ 

§  497.     No    presumption    from    execution.    Simply  executing 

Walker  v.  Walker,  42  111.  311;  Sou-  out  of   the  grantor's  control,   but 

verbye  v.  Arden,  1  Johns.  Ch.  (N.  was  placed  by  him  in  a  bureau  in 

Y.)    240.  his  house  with  other  papers,  where 

52  Bunn  V.  Winthrop,  1  Johns,  it  remained  until  his  death.  He 
Ch.  (N.  Y.)  329;  Scrugham  v.  expressed  to  the  justice  who  took 
Wood,  15  Wend.  (N.  Y.)  545;  Otis  his  acknowledgment  his  intention 
V.  Beckwith,  49  111.  121,  that  the  land  should  go  to  these 

53  Jones  V.  Loveless,  99  Ind.  317.  children,  saying  that  he  had  given 

54  Williams  v.  Schatz,  42  Ohio  St.  his  older  children,  who  were  grown 
47;  Davis  v.  Cross,  14  Lea  (Tenn.)  and  had  left  him,  a  good  farm.  In 
637.  reply    to    the    suggestion    that    it 

55  Cline  V.  Jones,  111  111.  563;  should  be  delivered  and  recorded, 
Goodlett  v.  Kelly,  74  Ala.  213.  In  he  replied  that,  being  the  natural 
Byars  v.  Spencer,  101  111.  429,  it  guardian  of  the  children,  he  was 
appeared  that  one  Thomas  Whit-  the  proper  person  to  have  custody 
son,  a  widower,  who  had  been  of  the  deed;  but  that  he  objected 
twice  married,  had  two  minor  to  recording  it  at  that  time,  be- 
children  by  the  second  marriage,  cause  if  he  could  sell  the  land  for 
Before  he  died,  he  executed  and  $6,000  he  wished  to  do  so  and  di- 
acknowledged  a  deed  conveying  to  vide  the  money  between  the  chil- 
them  the  farm  on  which  he  lived,  dren,  and  if  it  was  on  record  it 
It  was  never  delivered  to  the  grant-  would  not  be  possible  to  make  a 
ees,  nor  to  any  one  for  them,  nor  good  title,  since  his  children  were 
ever   recorded,   and   did  not  pass  minors.      But    some    time    before 


DELIVERY.  591 

and  acknowledging  a  deed  pursuant  to  previous  agreement, 
while  it  may  be  evidence  which,  when  taken  in  connection 
with  other  circuinstances,  may  tend  to  disclose  intent,  will  not 
of  itself  amount  to  a  delivery j"^"  and  no  legal  presumption  will 
arise  from  such  acts."  A  party  claiming  under  a  deed  must 
always  jtrovc  its  delivery;  and  this  is  not  accomi)lished  by  a 
simple  showing  of  the  fact  of  execution,  nor  even  by  such 
fact  and  the  further  circumstance  that  it  has  passed  from  the 
grantor's  hands;  for  a  delivery  to  a  third  person,  or  even  to 
the  grantee,  may  be  made  for  other  purposes  than  to  give  the 
deed  effect,  and  the  mere  fact  that  it  is  put  into  their  hands, 
if  not  as  a  completed  transfer,  will  not  bind  the  grantor.^^ 

§  498.  Sufficiency  of  proof  of  delivery.  To  constitute  the 
act  of  a  grantor  a  delivery  of  a  deed,  it  must  be  such  as  to 
manifest  an  intention  on  his  part  to  make  a  delivery,  and  to 
part  with  the  possession  and  control  of  the  instrument.  Yet, 
as  previously  remarked,  this  intention  may  be  gathered  from 
acts  or  words,  or  from  both;  and  it  is  not  essential  that  the 
deed  be  delivered  to  the  grantee,  or  indeed  that  it  ever 
actually  pass  from  the  hands  of  the  grantor.^^  Any  com- 
petent testimony  which  clearly  and  unmistakably  tends  to 
show  the  essential  facts  will,  in  the  absence  of  any  evidence 

his  death  he  offered  to  sell  the  it  to  one  N.  to  hold  subject  to  corn- 
farm,  and  on  several  occasions  plainant's  order.  It  was  under- 
called  it  his.  The  court  held  there  stood  between  complainant  and  the 
was  no  delivery.  See  also  Stinson  person  who  drew  the  deed  that 
V.  Anderson,  96  111.  373.  complainant  could  rescind  or  alter 
60  Turner  v.  Carpenter,  83  Mo.  it  at  will.  Complainant  gave  de- 
333.  fendant  an  order  on  N.  for  the 
57  Boyd  V.  Slayback,  63  Cal.  493.  deed  in  order  to  show  it  to  defend- 
68  Jackson  v.  Phipps,  12  Johns,  ant,  and  to  induce  him  to  secure 
(N.  Y.)  418;  Prutsman  v.  Baker,  certain  payments  to  complainant's 
30  Wis.  644;  Bovee  v.  Hinde,  135  other  heirs — the  deed,  in  such  case, 
111.  137.  The  deposit  of  a  properly-  to  be  operative  at  complainant's 
executed  deed  with  a  public  ofhcer,  death.  Defendant  took  the  deed 
but  not  for  record,  and  with  no  and  put  it  on  record.  Held,  that 
purpose  of  giving  the  deed  effect,  there  was  no  delivery  of  it,  and 
was  held  no  delivery.  Austin  v.  complainant  could  rescind  it  and 
Register,  41  Mich.  723.  Complain-  have  it  canceled  of  record.  Pen- 
ant  made  a  deed  of  his  land,  in-  nington  v.  Pennington  (Mich.)  42 
eluding  his  homestead,  to  defend-  N.  W.  Rep.  985. 
ant,  with  intent  to  have  the  same  so  Munoz  v.  Wilson,  111  N.  Y. 
delivered  after  his  death,  and  gave  295, 


592  EXECUTION. 

contradicting  or  impeaching  it,  or  of  any  circumstances  which, 
may  throw  suspicion  upon  it,  be  sufficient  to  establish  a  valid 
delivery ,^<^  and  the  court  may  instruct  the  jury  to  find  a  deliv- 
ery where  the  whole  testimony  shows  a  state  of  facts  from 
which  delivery  is  a  positive  inference  of  law.*^^  But  the  testi- 
mony should  be  of  such  a  character  as  to  leave  no  doubt  as 
to  the  grantor's  intention  that  the  deed  should  at  the  time 
become  operative  and  effectual.  Upon  this  point  all  the  ques- 
tions relative  to  delivery  turn,  and  the  proof  must  satisfac- 
torily establish  this  fact  before  the  deed  can  be  regarded  as 
evidence  of  a  conveyance.^^ 

§  499.  Delivery  to  infant.  Deeds  to  infants  of  tender  years 
are  governed  by  somewhat  different  rules  than  those  which, 
prevail  in  case  of  adults.  Thus,  if  a  parent  executes  a  deed 
to  an  infant  child  and  in  his  interest,  and  manifests  by  words 
and  conduct  an  intention  that  the  deed  shall  operate  at  once, 
a  delivery  will  be  presumed,  and  proof  of  an  actual  delivery 
will  be  unnecessary.  The  duty  of  the  parent,  in  such  a  case,  to 
accept  and  preserve  the  deed  for  the  infant  until  he  arrives  at 
majority,  is  sufficient  to  warrant  the  presumption  of  delivery, 
and,  when  the  grantor  is  also  the  father  of  the  grantee,  to 

60  Otis  V.  Spencer,  102  111.  622;  claim  that  it  had  previously  been 
Stinson  v.  Anderson,  96  111.  373;  delivered;  and  the  grantor,  in  his 
Cover  V.  Manaway,  115  Pa.  St.  338;  answer  to  a  bill  in  equity,  denied 
McLaughlin  v.  Manigle,  63  Tex.  that  it  had  been  delivered.  Held, 
553.  that    a    delivery    had    not    been 

61  Jones  v.  Swayze,  42  N.  J.  L.  proved.  Mills  v.  Gore,  20  Pick. 
279.  (Mass.)  28.    A  father  executed  and 

62  See  Gorman  v.  Gorman,  98  111.  acknowledged  a  deed  purporting  to 
361;  Benneson  v.  Aiken,  102  111.  grant  an  estate  to  his  three  adult 
284.  A  grantor  upon  signing  a  deed  sons,  to  take  effect  presently,  and 
put  it  before  the  grantee,  saying,  then  delivered  the  deed  to  one  of 
"There  is  no  go  back  from  th'at,"  them,  saying,  "Take  this  deed  and 
and  the  witnesses  then  subscribed  put  it  in  our  box  at  the  bank."  He 
their  names.  A  note,  which  was  did  no  other  act  showing  an  inten- 
to  be  the  consideration  of  the  deed,  tion  to  formally  deliver  the  in- 
was  not  handed  to  the  grantor,  but  strument  and  himself  retained  pos- 
the  two  papers  were  taken  up  by  session  of  the  land  granted,  ra- 
the grantee,  and  the  parties  went  ceiving  the  rents  and  profits,  dur- 
to  a  magistrate,  by  whom  the  ac-  ing  his  lifetime;  held,  that  the  in- 
knowledgment  was  taken  and  certi-  strument  was  inoperative  for  want 
fied ;  but  the  grantor  withheld  the  of  a  sufficient  delivery.  Hayes  v. 
deed    from    the    grantee,    and    the  Boylan,  141  111.  400. 

grantee    did    not    then    assent    or 


DELIVERY. 


593 


evince  an  unmistakable  intent  on  hin  part  to  j^lve  the  deed 
effect  and  pass  title."-* 

§  500.  Delivery  to  third  person.  It  is  not  necessary,  to 
ellect  a  valid  delivery,  that  the  instrument  should  pass  from 
the  hand  of  the  grantor  to  the  grantee,***  for  the  law  only 
re(iuires  some  act  that  shall  preclude  a  revocation,  and  hence 
such  delivery  may  be  made  to  a  third  party  authorized  to 
receive  it,^°  or  even  to  a  stranger  for  the  use  of  the  grantee,"" 
provided,  of  course,  there  is  a  subsequent  ratification ;"'  and 
generally  a  delivery  to  any  third  person,  intended  to  give  the 
deed  effect  and  to  make  the  conveyance  operative,  is  a  legal 
delivery,***^  and  will  operate  to  transfer  title  to  the  grantee 
therein  named  by  relation  as  of  the  time  it  was  received  by 
such  third  person.**^ 

But  a  delivery  to  a  third  person  made  for  other  purposes 
than  to  give  the  deed  effect  will  be  inoperative,  and  the  mere 
fact  that  it  is  put  into  the  hands  of  such  third  jierson,  if  not  as 
a  completed  transfer,  will  not  bind  the  grantor.'^"  So,  also, 
where  a  deed  was  intrusted  to  grantor's  agent  to  be  delivered 
after  death,  it  was  held  there  could  be  no  continuance  of 
agency  after  death,  and  that  there  was  no  valid  delivery,"^! 


63  Bryan  v.  Wash,  7  111.  568; 
Masterson  v.  Cheek,  23  111.  72; 
Colee  V.  Colee,  122  Ind.  109;  New- 
ton V.  Dealer,  41  Iowa  334.  But 
compare  Byars  v.  Spencer,  101  111. 
429. 

04  Cooper  V.  Jackson,  4  Wis.  537; 
Weber  v.  Christen,  121   111.  91. 

c-' Duer  v.  James,  42  Md.  492; 
Eckman  v.  Eckman,  55  Pa.  St.  269; 
Hatch  V.  Bates,  54  Me.  136;  Hinson 
V.  Bailey,  73  Iowa  544;  Fisher  v. 
Hale,  41  N.  Y.  416;  Ashford  v. 
Prewitt,  102  Ala.  264. 

c;  Duer  v.  James,  42  Md.  492; 
Hosley  v.  Holmes,  27  Mich.  416; 
Souverbye  v.  Arden,  1  Johns.  Ch. 
(N.  Y.)  240;  McCormick  v.  McCor- 
mick,  71  Iowa  379;  Munoz  v.  Wil- 
son. Ill  N.  Y.  295. 

•'"Brown  v.  Brown,  66  Me.  316; 
Fisher  v.  Hall,  41  N.  Y.  423. 

o"*  Hosley    v.    Holmes,    27    Mich. 

38 


416;  Owen  v.  Williams,  114  Ind. 
179;  Rosseau  v.  Bleau.  131  N.  Y. 
177;  Parker  v.  Parker,  56  Iowa  111; 
Hatch  V.  Hatch,  9  Mass.  307;  Peavy 
V.  Tilton,  18  N.  H.  151. 

60  Munoz  v.  Wilson,  111  N.  Y. 
295. 

70  Jackson  v.  Phipps,  12  Johns. 
(N.  Y.)  418;  Austin  v.  Register. 
41  Mich.  723.  A  deed  in  a  third 
person's  hands  subject  to  the 
grantor's  orders  was  held  not  deliv- 
ered. Prutsman  v.  Baker,  30  Wis. 
644. 

Ti  Wellborn  v.  Weaver,  17  Ga. 
267;  McElroy  v.  Hiner.  133  111.  156: 
Anderson  v.  Anderson,  126  Ind.  62. 
But  see  Foster  v.  Mansfield.  3  Met. 
(Mass.)  412,  where  it  was  held 
that  if  a  grantor,  at  the  time  of 
his  giving  directions  for  the  mak- 
ing of  a  deed,  and  after  the  deed 
is  drawn  and  presented  to  him,  di- 


594 


EXECUTION. 


notwithstanding  the  instrument  had  been  actually  transmit- 
ted pursuant  to  such  instruction^^  But  such  rule  must  be 
considered  as  having  application  only  where  the  grantor 
assumes  to  still  control  the  deed;'^^  for  the  cases  are  numer- 
ous where  deposits  made  with  third  persons  for  transmittal  to 
the  granttH'  after  the  grantor's  death  have  been  sustained  as 
valid  deliveriesJ* 

§  501.  Delivery  to  take  effect  after  death  of  grantor. 
Closely  connected  with  the  subject  discussed  in  the  preceding 
paragraph  is  the  character  to  be  given  to  instruments  left 
with  a  third  person  to  hold  until  the  death  of  the  grantor  and 
then  to  be  delivered  to  the  grantee.  Notwithstanding  some 
of  the  earlier  decisions  to  the  contrary,  the  current  of  later 
authority  seems  to  establish  the  doctrine  that,  where  the 
grantor  reserves  no  privilege  of  revoking  or  recalling  the  deed, 
its  legal  effect  is  that  of  an  escrow,  which,  upon  the  happen- 
ing of  the  contingency  of  death,  relates  back  to  the  first  deliv- 
ery and  becomes  effective  to  convey  the  grantor's  title.''^^ 

The  reasonings  by  which  these  deliveries  have  been  sup- 


rects  and  intends  that  from  and 
after  its  execution  it  shall  be  taken 
and  retained  by  the  scrivener  until 
after  the  grantor's  death,  and  then 
be  delivered  to  the  grantee,  all  of 
which  is  afterwards  done,  the  es- 
tate vests  in  the  grantee  from  the 
time  of  the  execution  of  the  deed. 
See,  also,  Shackelton  v.  Sebree,  8B 
111.  616. 

7^  Weisinger  v.  Cock,  67  Miss. 
511;  Cook  v.  Brown,  34  N.  H.  460; 
Brown  v.  Brown,  66  Me.  316;  and 
see  Wellborn  v.  Weaver,  17  Ga. 
267,  where  such  a  delivery  was 
denied  effect  even  as  an  escrow, 
but,  en  semhle,  might  be  proved  as 
a  testamentary  paper. 

■?••>  It  has  been  held  that  if  a  per- 
son executes  a  deed  of  land  and 
places  it  in  the  hands  of  A.,  with 
directions  to  keep  it  during  the 
grantor's  life,  and  on  his  death  to 
deliver  it  to  the  grantee,  A.  holds 
it  as  an  agent  of  the  grantor  and 


not  as  agent  of  the  grantee,  and 
that  the  grantor  may  revoke  it  at 
any  timei  Hale  v.  Joslin,  134 
Mass.  310. 

T4  As  where  a  woman  went  with 
her  daughter  to  a  justice  of  the 
peace  and  signed  and  acknowl- 
edged before  him  a  conveyance  of 
land  to  the  daughter.  The  mother 
told  the  justice  to  keep  the  deed 
until  she  died,  and  then  to  record 
it.  Held,  that  the  deed  should  be 
deemed  to  have  been  delivered 
when  signed  and  acknowledged. 
Hinson  v.  Bailey,  73  Iowa  544.  See, 
also.  Smiley  v.  Smiley,  114  Ind. 
258;  Foster  v.  Mansfield,  3  Met. 
(Mass.)  412;  Shackelton  v.  Sebree, 
86  111.  616. 

TsHockett  V.  Jones,  70  Ind.  227; 
Stephens  v.  Huss,  54  Pa.  St.  20; 
Howard  v.  Patrick,  38  Mich.  805; 
Wall  v.  Wall,  30  Miss.  91;  Thatcher 
V.  St.  Andrew's  Church,  37  Mich. 
264;    Owen  v.   Williams,  114   Ind. 


DELIVERY.  595 

ported  have  not  always  been  the  same;  indeed,  they  are  very 
diverse,  but  the  conclusions  arrived  at  all  sustain  the  doctrine 
that,  when  a  <,n'antor  phues  in  the  hands  of  a  third  party  his 
written  deed  with  instructions  to  hold  until  the  grantor's 
death  and  then  to  deliver  it  to  the  grantee,  if  such  deposit  is 
made  with  no  other  condition  or  reservation,  and  if  the 
grantor  by  such  act  absolutely  parts  with  all  control  or  domin- 
ion over  it,  with  no  right  to  recall  it  or  alter  its  provisions,  or 
to  have  or  enjoy  any  other  or  further  interest  in  the  lands 
conveyed  than  to  hold  the  use  thereof  until  his  death,  a  valid 
delivery  is  established  when  consummated  by  the  final  act  of 
transference  to  the  grantee.  The  essential  requisite  in  such 
case  seems  to  be,  that  when  placed  in  the  hands  of  the  depos- 
itary the  instrument  shall  at  once  pass  beyond  the  control  of 
the  grantor  for  all  time,  and  his  intention  in  the  matter  is  a 
question  of  fact  to  be  ascertained  by  the  light  afforded  by  all 
the  circumstances  surrounding  the  transaction.''^^  The  general 
theory  involved  in  the  discussions  of  the  foregoing  conclusions 
seems,  in  the  main,  to  be,  that  the  grantor,  in  effect,  by  the 
absolute  delivery  to  the  depositary,  converts  his  estate  into  a 
life  tenancy,  the  remainder  in  fee  vesting  in  the  grantee.'^'^ 

There  is  some  confusion  in  the  reported  cases  as  to  when  the 
deed  talvcs  effect,  but,  while  some  hold  that  it  becomes  opera- 
tive only  upon  the  delivery  by  the  depositary  after  the  death 
of  the  grantor,  such  second  delivery  relating  back  to  the  first 
so  as  to  divest  title,  the  better  and  more  logical  rule,  passes 
the  title,  full  and  complete,  upon  the  first  delivery.  Indeed 
any  other  rule  infringes  upon  the  law  relating  to  devises  and 
produces  an  incongruity  that  is  difficult  to  reconcile  with  the 
settled  principles  which  govern  the  disposition  of  property  by 
deed  and  will. 

§  502.  Continued — Testamentary  deeds.  The  question 
usually  raised  in  matters  of  the  kind  discussed  in  the  preced- 
ing paragrai)h  is  one  of  construction,  the  point  to  be  decided 
being  whether  the  instrument  is  to  be  considered  as  a  deed  or 
a  will.  It  is  well  established  that  neither  the  form  nor  man- 
ner of  execution  of  an  instrument  will  affect  its  character,  as 

179;  Hinson  V.  Bailey.  73  Iowa  544.  439;    Prutsman  v.  Baker,  30  Wis. 

TO  Bury  v.   Young,   98   Cal.   446;  650;  Cook  v.  Brown,  34  N.  H.  460. 

Sneathen  V.  Sneathen,  104  Mo.  201;  77  See    Prutsman    v.    Baker,    30 

O'Kelly  V.  O'Kelly,  8  Met.   (Mass.)  Wis.  650. 


51)6  EXECUTION. 

this  must  be  determined  from  its  operation.  If  it  takes  effect 
in  presenti  it  is  a  deed;  if,  on  the  other  hand,  it  does  not 
become  operative  until  the  death  of  him  who  makes  it,  it  is  a 
will,  whatever  be  its  form.  Thus  a  deed,  if  made  with  a  view 
to  the  disposition  of  a  man's  estate  after  his  death,  will  inure 
in  law  as  a  devise  or  will.^^  A  deed  must  take  effect  upon  its 
execution  or  not  at  all.'^"  Again,  a  deed,  when  once  passed, 
cannot  be  revoked;  a  will  remains  ambulatory  to  the  day  of 
the  testator's  death.  Applying  these  principles,  the  charac- 
ter of  instruments  under  consideration  can  soon  be  deter- 
mined. If  the  delivery  to  the  depositary  be  absolute,  the 
grantor  surrendering  all  power  or  control  over  the  instrument, 
effect  should  be  given  to  it  as  a  deed  of  conveyance.^^  But  a 
party  cannot  make  a  deed  for  land  and  retain  its  custody,  and 
have  it  operate  as  a  conveyance  only  at  or  after  his  death  ;^i 
nor  can  he  effect  such  a  result  by  simply  depositing  the  deed 
with  a  third  person  if  he  continues  to  have  the  right  to  recall 
it;^-  and  in  such  event,  even  though  he  dies  without  recalling 
it,  a  delivery  by  the  depositary  to  the  grantee  would  be  with- 
out effect.®^ 

The  lodgment  of  a  deed,  properly  executed  and  acknowl- 
edged by  the  grantor,  in  a  place  to  which  the  grantee  has 

7^  Wellborn   v.    Weaver,    17    Ga.    ness  within  a  few  days,  and  C.  then 
267.  handed  the  deed  to  B.    Held,  that 

70  Cline  v.  Jones,  111  111.  563.         there  was  no  delivery.    Williams  v. 
80  Prutsman   v.    Baker,    30   Wis.    Schatz,  42  Ohio  St.  48. 

S3  The  grantor  in  a  deed,  fearing 
the  approach  of  death,  called  her 
attendant  to   bring   out  a  certain 


644;  Brown  v.  Brown,  66  Me.  316 
Ball  V.  Foreman,  37  Ohio  St.  139 
Baker  v.    Haskell,   47    N.   H.   479 


Hinson  v.  Bailey,  73  Iowa  544.  box  and  told  her  to  take  it  into  her 

81  Cline  v.  Jones,  111  111.  563;  lap;  that  she  put  it  into  her  pos- 
Goodlett  v.  Kelly,  74  Ala.  213;  Mil-  session;  that  it  contained  her  will, 
ler  V.  Lullman,  81  Mo.  311;  Ball  deeds  to  two  houses  and  a  thousand 
V.  Foreman,  37  Ohio  St.  139.  dollars  in  gold;  that  on  the  deeds 

82  This  is  so  even  though  the  were  the  names  of  the  persons  who 
grantor  may  not  have  intended  to  were  to  have  the  houses;  that  the 
retain  such  right  and  does  not  ex-  box  should  be  delivered  to  her  ex- 
ercise it.  Williams  v.  Schatz,  42  ecutor;  that  if  she  lived  she  would 
Ohio  St.  47.  A.,  while  sick,  exe-  talk  further  about  the  contents  of 
cuted  a  deed  of  gift  to  his  son  B.,  the  box,  but  in  any  event  not  to 
and  gave  it  to  C,  saying,  "Take  open  it  until  after  the  funeral, 
this  deed  and  keep  it.  If  I  get  It  further  appeared  that  her  atten- 
well  I  will  call  for  it.  If  I  don't,  dant  accordingly  took  charge  of 
give  it  to  B."    A.  died  of  that  sick-  the  box,  and  she  soon  after  died. 


DELIVERY.  597 

access,  and  from  which  h<'  can  withont  hindrance  transfer  it 
to  his  own  possession,  willi  intent  on  the  iiart  of  tlie  j^rantor 
that  the  grantee  may  after  his  death  take  it  and  have  it 
recorded,  does  not  constitute  a  dclivery.'^^  V]Hm  this  point, 
however,  the  autliorities  aic  somewhat  (liscordant — not  as  to 
the  law,  but  in  the  application  of  tlie  law  to  particular  facts; 
and  nunicrons  decisions  ajiix'ar  to  militate  in  some  measure 
against  the  pr(»[)()sition  last  stated.'^-'' 

§  503.  Deed  retained  by  grantor.  The  fact  that  the  grantor 
retains  the  custody  of  the  deed  does  not  in  any  way  alVect  the 
operation  of  a  former  delivery;  and  there  are  numerous  cases 
where  deeds  found  to  have  been  in  the  custody  of  the  grantor 
at  his  death  have  been  held  valid  on  proof,  or  facts  amount- 
ing to  proof,  that  he  had  made  an  eflectual  delivery,  and 
become  a  mere  custodian  of  the  deed  thereafter.***^  Nor  is  it 
necessary  that  the  grantee  or  his  agent  should  be  present  at 
the  execution  of  a  deed,  or  himself  actually  manually  receive 
the  instrument,  to  render  it  operative;  but  it  should  be  placed 
within  the  power  of  some  other  person  for  the  grantee's  use, 
or  the  grantor  should  clearly  indicate  it  to  be  his  intention 
that  the  instrument  should  take  efl'ect  as  a  conveyance  of  the 
property,  so  that  if  he  retain  the  possession  of  the  deed  it 
should  appear  to  be  merely  as  bailee  of  the  grantee;  and  in 
every  instance  where  a  deed  is  retained  in  the  grantor's  cus- 
tody there  must  be  unequivocal  proof  of  a  legal  delivery 
intended  to  be  operative.**^ 

Held,  that  there  was  no  sufficient  Souverbye  v.  Arden,  1  Johns.  Ch. 

delivery  of  the  deed  to  pass  a  title.  (N.  Y.)  240. 

Porter  v.  Woodhouse,  59  Conn.  568.  "  Fisher  v.  Hall,  41  N.   Y.  416. 

84  Scott  V.  Scott,  95  Mo.  300.  Thus,  where  a  conveyance  of  real 

85  As  where  a  father  duly  exe-  estate  has  been  subscribed  and 
cuted  a  deed  to  his  son  with  intent  sealed  by  the  grantor,  attested  by 
that  his  son  should  assume  control  witnesses  under  a  clause  stating 
of  his  property  after  his  death,  but  that  it  had  been  sealed  and  deliv- 
fearing  that  his  son's  wife  might  ered  in  their  presence,  but  the 
dispossess  him  if  she  knew  of  the  grantee  was  not  then  present,  and 
conveyance  he  placed  the  deed  in  remained  ignorant  of  the  existence 
his  son's  trunk,  where  it  was  found  of  the  deed  until  long  after  the 
after  the  grantor's  death.  Held,  death  of  the  grantor,  and  the 
that  there  was  a  delivery.  Hill  grantor  continually  remained  In 
V.  Hill,  119  111.  242.  the  possession  of  the  premises  until 

■^oReed  v.   Douthit,   62   111.  348;     his    death,    when    the    deed    was 


598  EXECUTION. 

A  deed  duly  executed,  but  retained  by  the  grantor  until  the 
land  should  be  paid  for,  and  he  dying  before  payment,  was 
held  inoperative  ;S'^  and  in  like  manner  a  deed  made  by  the 
grantor,  and  retained  by  him  with  the  distinct  understanding 
that  it  would  become  operative  at  his  death,  and  found  among 
his  papers  with  a  will  which  it  was  designed  to  alter,  was  held 
void  for  want  of  delivery  during  life.*^ 

Where  the  grantor  has  by  will  or  otherwise  asserted  that 
an  actual  delivery  has  taken  place,  such  deeds  have  been 
maintained,  as  they  have  also  been  in  some  cases  where  there 
was  a  previously-recognized  obligation  to  make  them  and  they 
purport  to  have  been  made  in  execution  of  it;  but  the  reten- 
tion of  control  of  title  has  always  been  held  inconsistent  with 
the  validity  of  a  deed  held  in  custody.  It  would  seem,  there- 
fore, that  any  deed  which  is  to  be  maintained  after  death  must 
have  been  made  operative  by  some  valid  delivery  by  the 
grantor  during  life;  and  while  a  disposition  has  been  shown 
in  some  cases  to  raise  presumptions  on  equitable  showings, 
there  is  no  foundation  for  any  rule  that  will  sustain  an  unde- 
livered deed,  and  there  is  no  room  for  presumption  when  the 
facts  appear.so 

§  504.  When  grantor  will  be  estopped.  The  intention  of 
the  parties  is  in  all  cases  the  controlling  element  in  determin- 
ing the  operation  and  effect  of  a  delivery.  If  the  grantor 
intended  a  present  delivery,  and  the  grantee  so  understood 
and  intended  that  there  should  be  an  acceptance,  a  formal 
delivery  to  the  grantee  in  person  would  not  be  necessary  to 
determine  the  character  of  the  transaction  or  fix  the  rights  of 
the  parties  so  far  as  they  may  be  dependent  on  that  fact. 
Thus,  where  the  grantor  induces  the  grantee  to  believe  that  a 
deed  has  been  executed  which  makes  him  the  owner  of  certain 
premises,  and  permits  the  grantee  to  act  under  this  belief  in 

found  among  his  papers,  held,  that  14  Ore.  82.    A  father,  a  year  before 

such  conveyance  was  wholly  inop-  his  death,  executed  and  acknowl- 

erative  to  pass  the  title,  and  no  de-  edged  a  deed  to  his  son.     He  did 

livery  thereof  to  the  grantee  could  not    deliver    it.    but    directed    his 

be     presumed    or    inferred     from  daughter  to  do  so  after  his  death, 

these   facts.     Ibid.  upon  the  execution  of  a  note  by  the 

88  Jackson  v.  Dunlap,  1  Johns,  son.  Held,  that  the  deed  was  inop- 
Cas.  (N.  Y.)  114.  erative.    Taft  v.  Taft,  59  Mich.  185. 

89  stillwell  V.  Hubbard,  20  Wend.  so  Taft  v.  Taft,  59  Mich.  185; 
(N.  Y.)  44;  and  see  Fain  v.  Smith.  Fain  v.  Smith,  14  Ore.  82. 


DELIVERY. 


599 


tnaking  valuable  inipiovcmcnts  on  the  laud,  he  will  be 
estopped  froui  alle«,'iug  that  the  deed  in  inoperative  for  want 
of  formal  deliverj."^ 

§  505.  Revocation  and  redelivery,  rrojierly  speaking  there 
can  be  no  revocation  of  a  deed  which,  being  duly  executed,  has 
been  actually  or  constructively  delivered.  By  that  act  the 
title  has  passed  beyond  the  grantor's  control;  and  though  he 
may  still  avail  himself  of  the  remedies  which  the  law  alTords 
either  for  reformation,  cancellation  or  rescission,  the  power 
of  revocation  no  longer  exists.  The  fact  that  after  delivery 
the  deed  has  been  returned  to  the  grantor  and  by  him  retained 
neither  negatives  nor  disproves  its  previous  delivery;  nor  will 
it  destroy  or  in  any  way  affect  the  title  of  the  grantee  as 
between  the  parties  ;^2  nor  will  the  further  fact  that  it  has 
been  canceled  or  destroyed  while  thus  in  the  grantor's  pos- 
session serve  to  divest  title  on  the  one  hand  or  re-invest  it 
on  the  other,^3  notwithstanding  such  may  have  been  the  inten- 
tion of  the  parties  ;'^^  nor  will  the  voluntary  destruction  of 
same  by  the  grantee  be  effective  to  reconvey  title.^^  The  mere 
act  of  destroying  the  evidence  of  title  can  have  no  effect  upon 
the  title  itself;  and  this  being  vested  in  the  grantee,  he  will 


81  Walker  v.  Walker,  42  111.  311. 

92  Thomas  v.  Groesbeck,  40  Tex. 
530;  Hart  v.  Rust,  46  Tex.  556; 
Wallace  v.  Berdell,  97  N.  Y.  13; 
Burkholder  v.  Cased,  47  Ind.  418; 
Albert  v.  Burbank,  25  N.  J.  Eq. 
404;  Kimball  v.  Grey,  47  Ala.  230. 

03  Warren  v.  Tobey,  32  Mich.  45; 
Reavis  v.  Reavis,  50  Ala.  60;  Rog- 
ers V.  Rogers,  53  Wis.  36;  Jackson 
V.  Gould,  7  Wend.  (N.  Y.)  364; 
Botsford  V.  Morehouse,  4  Conn. 
550;  Marshall  v.  Fisk.  6  Mass.  24; 
Tibeau  v.  Tibeau,  19  Mo.  78;  Kear- 
sing  V.  Kilian,  18  Cal.  491;  Patter- 
son V.  Yeaton,  47  Me.  308;  Jordan 
V.  Jordan,  14  Ga.  145;  Watters  v. 
Wagely,  53  Ark.  509. 

0*  Warren  v.  Tobey,  32  Mich.  45; 
Reavis  v.  Reavis,  50  Ala.  60;  Chess- 
man v.  Whittemore.  23  Pick. 
(Mass.)    231;    but   see   Sawyer  v. 


Peters,  50  N.  H.  143;  Howard  v. 
Huffman,  3  Head  (Tenn.)  564.  A 
deed  is  but  the  evidence  of  a  con- 
veyance; and  the  destruction  of  a 
deed,  while  it  affects  the  evidence 
of  a  conveyance,  does  not  vacate  or 
affect  the  conveyance  itself  or  re- 
invest title  in  the  grantor.  Erwin 
v.  Hall,  18  111.  App.  315.  Where  a 
deed  has  been  made  to  a  married 
woman,  and,  before  recording  it, 
she  sells  the  land  to  a  third  per- 
son, and  surrenders  her  deed  to 
her  grantors,  and  has  them  execute 
a  deed  to  such  person,  he  gets  no 
interest  in  the  land,  as  title  cannot 
be  divested  by  cancellation  and  sur- 
render of  a  deed.  Wattersv. Wagely, 
53  Ark.  509. 

» 5  Potter  v.  Adams.  125  Mo.  118; 
Van  Hook  v.  Simmons,  25  Tex. 
323. 


GOO  JBJXECUTION. 

continue  to  hold  it  as  against  the  grantor."'*  The  grantee, 
however,  although  possessing  the  estate,  having  voluntarily 
and  without  fraud  or  mistake  destroyed  the  evidences  of  his 
legal  ownership,  would,  in  case  of  an  unrecorded  deed,  be  left 
entirely  without  means  by  which  he  could  afterwards  establish 
or  prove  his  title  ;^^  and  in  such  case  the  title,  in  a  very 
restricted  sense,  may  be  said  to  have  reverted,  because  the 
grantee  is  estopped  to  assert  or  prove  it,-''*  and  thus  the  inten- 
tion of  the  parties  may  become  effective.  Again,  while  the 
redelivery  or  destruction  of  the  deed  can  have  no  effect  as  a 
transfer  of  the  legal  title,  it  may  under  some  circumstances 
vest  an  equitable  title,^^  or  at  least  preclude  the  grantee  from 
asserting  the  same;  and  as  in  equity  such  a  title  may  be  set 
up  against  a  legal  title,  courts  in  a  x^roper  case  will  not  inter- 
fere to  divest  them.i 

But  while  the  foregoing  represents  the  doctrine  enunciated 
and  sustained  by  the  volume  of  authority  upon  the  subject,  it 
would  yet  seem  that  a  different  rule  is  maintained  in  some 
states,  where  it  is  held  that  a  voluntary  surrender  or  cancel- 
lation, with  intent  to  revest  title  in  the  grantor,  may  operate 
as  a  reconveyance  when  the  cancelled   deed   has  not  been 

96  Parker  v.  Kane,  4  Wis.  1;  i  As  where  a  husband,  after  hav- 
Hentch  v.  Hentch,  9  Mass.  307;  ing  received  a  deed  for  a  lot  from 
Jackson  v.  Page,  4  Wend.  (N.  Y.)  his  wife's  parents,  surrendered  the 
417;  Jeffers  v.  Philo,  35  Ohio  St.  deed  to  them  for  the  purpose  of 
173.  having  them  convey  the  lot  to  his 

97  Parker  v.  Kane,  4  Wis.  1;  wife,  and  his  deed  was  destroyed, 
Dukes  V.  Spangler,  35  Ohio  St.  119.  it  having  never  been  recorded,  and 

98  Howard  v.  Huffman,  3  Head  a  new  one  made  to  his  wife,  in 
(Tenn.)  562;  Speer  v.  Speer,  7  Ind.  which  he  acquiesced  for  seventeen 
178;  Dukes  v.  Spangler,  35  Ohio  years  before  suing  for  a  deed,  ?ie?(i, 
St.  119;  Farrar  v.  Parrar,  4  N.  H.  that  the  surrender  of  his  deed  by 
191;  Trull  v.  Skinner,  17  Pick,  the  husband  and  the  making  of  a 
Mass.  213;  Sutton  v.  Jervis,  31  Ind.  new  one  to  his  wife  did  not  divest 
265.  his  legal  title,  but  passed  an  equit- 

99  Commonwealth  v.  Dudley,  10  able  title  to  his  wife  which  a  court 
Mass.  402 ;  Patterson  v.  Yeaton,  47  of  equity  would  protect.  Sanford 
Me.  308;  Lawrence  v.  Stratton,  6  v.  Finkle,  112  111.  146;  but  in  this 
Gush.  (Mass.)  165.  In  the  fore-  case  the  surrender  by  the  husband 
going  cases,  however,  where  the  and  re-issue  to  the  wife  was  re- 
grantee  had  surrendered  his  deed  garded  as  in  the  nature  of  an  equit- 
to  the  grantor,  the  property  was  able  gift  amounting  to  a  settle- 
then  sold  to  a  third  person  with-  ment. 

out  notice. 


DELIVERY.  601 

recorded,-  and  the  ri<,'hls  ol'  third  persons  have  not  iutervened.-' 
So,  too,  under  the  operation  of  the  rule  last  stated,  it  has  been 
held  that  wliere  thi*  j^raiitee  in  possession  under  a  deed  duly 
executed,  but  not  recorded,  sells  the  land  to  a  third  person, 
cancels  his  deed,  and  requests  his  grantor  to  make  a  new 
conveyance  to  such  third  person,  which  he  does,  the  title  by 
such  new  conveyance  is  valid.' 

But  this  doctrine,  which  is  confined  to  a  very  few  jurisdic- 
tions.'' is  fundamentally  opposed  to  modern  theories  of  the 
operation  of  the  statute  of  frauds,  which  requires  a  conve}'- 
ance  to  be  evidenced  by  a  writing,  and  even  where  it  is  per- 
mitted to  obtain  it  is  explained  and  supported  not  upon  the 
principle  of  grant  but  of  estoppel." 

§  506.  Delivery  in  escrow.  Where  a  deed  is  delivered  to  a 
stranger,  to  be  by  him  delivered  to  the  grantee  upon  the 
performance  of  certain  conditions,  it  is  said  to  be  in  escrow. 
But  as  the  first  or  preliminary  delivery  is  simply  a  device  for 
the  greater  convenience  of  the  grantor,  it  has  no  operation  in 
law,  and  the  escrow  takes  effect  as  a  deed  only  from  the  date 
of  the  second  delivery;  that  is,  from  the  date  of  its  delivery 
to  the  grantee  or  some  person  in  his  behalf.'^  Prior  to  this 
event  the  estate,  with  all  its  incidents,  remains  in  the  grantor,^ 
and  in  case  of  his  death  during  the  intervening  period  descends 
to  his  heirs,'-^  subject,  of  course,  to  the  equitable  rights  of  the 
purchaser.!*^  But  while  delivery  is  essential  to  render  the 
deed  effectual  at  law,  it  is  in  fact  the  performance  of  the 

1!  See  Farrer  v.  Farrer,  4   N.  H.  Peter  v.  Wright,  G  Ind.  183;  Resor 

191;  Mallory  v.  Stodder,  6  Ala.  801;  v.  R'y  Co.  17  Ohio  St.  139;   Everts 

Sherburne  v.  Fuller,  5  Mass.   133.  v.   Agnes,    4   Wis.   343;    Cogger  v. 

•■*  Trull     V.     Skinner,     17     Pick.  Lansing,  43  N.  Y.  550. 
(Mass.)    218;    Hall   v.   McDuff,   24        »<  Jackson  v.   Rowland,   6  Wend. 

Me.  311.  (N.   Y.)    666;    Cogger   v.   Lansing, 

■*  Commonwealth    v.    Dudley,    10  43  N.  Y.  550. 
Mass.  403;    Holbrook  v.   Tirrell,  9        »  Teneick  v.  Flagg.  29  N.  J.  L.  25; 

Pick.  (Mass.)  105;  but  see  Walters  Cogger  v.  Lansing.  43  N.  Y.  550. 
V.   Wagely,  53  Ark.  509.  i"  But  only  in  the  event  that  the 

■''  It  obtains  mainly  in  the  New  contract  can  be  shown  by  a  valid 

England  States.  agreement — i.  e.,  an  agreement  suf- 

'••  See  Trull  v.  Skinner,  17  Pick,  ficient  to  take  the  transaction  out 

(Mass.)  215.  of  the  operation  of  the  statute  of 

7  Dyson    v.     Bradshaw,    23    Cal.  frauds.     Cogger  v.  Lansing.  43  N. 

528;    Smith  v.    Bank,   32   Vt.   341;  Y.  550. 


002  EXECUTION. 

coiulitions  that  imparts  life  aud  validity  ;^i  and  for  this  reason 
equity  regards  the  title  as  vesting  in  the  grantee  whenever 
this  has  been  done. 

It  will  be  seen,  therefore,  that,  unlike  the  ordinary  case  of 
delivery  by  grantor  to  grantee,  no  title  passes  until  the  condi- 
tions have  been  perfonued  and  the  deed  delivered  to  the 
purchaser,  the  second  delivery  deriving  all  its  force  from  the 
first,  of  which  it  is  the  full  consummation  and  execution.  The 
essential  requisite,  however,  is  the  performance  of  the  condi- 
tions; and  if,  without  such  performance,  the  depositary 
delivers  the  escrow  to  the  grantee  except  by  direction  of  the 
grantor,  the  deed  will,  as  between  the  parties,  be  inoperative 
and  void.  The  fact  that  the  grantee  takes  it  in  good  faith 
does  not  alter  the  rule;  for  it  is  fundamental  that  the  delivery 
must  be  with  the  assent  of  the  grantor,  and  this  is  never  pre- 
sumed while  the  conditions  remain  unperformed.^^  ^^itb. 
respect  to  third  parties  the  decisions  are  not  in  complete 
harmony.  Undoubtedly  a  purchaser  from  a  grantee  in  escrow 
who  had  knowledge  of  the  facts  attending  the  deposit  and 
delivery  would  take  no  better  title  than  his  grantor,  and  the 
estate  in  his  hands  would  be  subject  to  any  infirmity  origin- 
ally attaching  to  it.  Hence,  if  the  delivery  by  the  depositary 
had  been  against  the  assent  of  the  grantor  in  escrow^  or  if 
it  had  been  procured  by  fraud,  or  before  the  proper  conditions 
had  been  performed,  and  the  second  purchaser  had  knowledge 
of  these  facts,  he  would  acquire  no  title  by  the  sale.^^  gut 
with  respect  to  an  innocent  purchaser  who,  in  good  faith  and 
for  value,  acquires  title  from  a  fraudulent  grantee,  a  different 
rule  should,  and  it  seems  does,  prevail. 

There  are  cases  which  strenuously  hold  that  in  every 
instance  where  by  improper  means  the  grantee  in  escrow  has 
obtained  possession  of  the  deed,  and  subsequently  conveys  to 
third  parties,  the  superior  equity  is  with  the  original  grantor, 
who  is  considered  as  never  having  parted  with  the  title,  and 
the  good  or  bad  faith  of  the  purchaser  is  immaterial ;i^    but 

11  Hinman  v.  Booth,  21  Wend.  White  v.  Core,  20  W.  Va.  272; 
(N.  Y.)  267;  Groves  v.  Tucker,  18  Dixon  v.  Savings  Bank,  102  Ga. 
Miss.  9;  Laubat  v.  Kipp,  9  Pla.  60;    461. 

State  Bank  v.  Evans,  15  N.  J.  L.  is  Everts   v.   Agnes,    6   Wis.   453 

155;  Smith  v.  Bank,  32  Vt.  341.  (second  hearing). 

12  Everts  v.  Agnes,  4  Wis.  343;  i^  Tisher  v.  Beckwith,  30  Wis. 
Daggett  v.  Daggett,  143  Mass.  516;  57;    Everts  v.  Agnes,  6  Wis.   453; 


DELIVERY.  003 

the  later  and  better  rule  would  seem  to  be  that  the  general 
principles  uliicli  underlie  the  law  of  notice  are  to  be  given 
full  elTect  In  this  as  in  other  cases,  and  that  good  faith,  want 
of  knowledge  and  jiarting  with  value,  will  confer  upon  the  pur- 
chaser the  same  rights  and  atlord  to  liini  the  same  protection 
that  he  would  receive  in  any  other  species  of  fraudulent 
conveyance.!"' 

An  unauthorized  or  fraudulent  delivery  by  the  depositary 
may,  however,  be  subsequently  ratified  by  the  grantor,  in 
which  event  the  legal  effect  of  the  transaction  is  not  distin- 
guishable from  a  delivery  made  in  a  proper  manner.  To 
accomplish  this  result  an  express  ratification  is  not  necessary 
for  same  may  be  presumed  from  the  grantor's  actions,  his 
silence  when  called  upon  to  speak,  or  other  acts  which  go  to 
create  an  estoi)pel  in  pais.  In  this  way  a  subsequent  purchaser 
may  obtain  protection  although  the  delivery  in  escrow  was 
void.!<^ 

It  would  seem  to  be  a  further  rule  that  there  can  be  no 
escrow  until  there  is  an  actual  contract  of  sale  on  the  one 
hand  and  a  purchase  on  the  other.  That  is,  a  deed  cannot 
be  regarded  as  in  escrow  if  the  negotiations  have  not  been 
closed  or  if  anything  remains  to  be  settled  to  the  satisfaction 
of  the  contracting  parties.  In  such  case  the  person  holding 
the  deed  is  a  mere  custodian,  subject  to  the  future  orders  of 
the  grantor,  and  without  right  to  deliver  the  instrument  until 
notified  by  the  grantor  so  to  do.^'^ 

If  a  deed  is  deposited  in  escrow  and  the  grantee  dies  the 
subsequent  performance  of  the  condition  vests  title  in  his 

Dixon   V.    Savings   Bank,   102   Ga.  could  not  question  the  bank's  title. 

461;   and  see  Jackson  v.  Lynn,  94  Simson  v.  Bank,  46  Hun   (N.  Y.) 

Iowa  151.  156. 

ir.  Quick    V.    Milligan,    108    Ind.  lo  See  Gotten  v.  Gregory,  10  Neb. 

419;   Blight  v.  Schenck,  10  Pa.  St.  125;    Dixon  v.  Savings  Bank,   102 

285.    A  grantor  delivered  a  deed  in  Ga.  461. 

escrow.     The   grantee  procured  it  I'As  where  a  deed  was  given  to 

to   show  a  bank,  and,   instead   of  a  third  person  to  be  delivered  when 

returning  it,   placed   it  on   record  "everything  is  all   right  and   per- 

without  the  grantor's  knowledge  or  feet"  and  there  was  nothing  to  in- 

consent,  and  without  having  per-  dicate  that  the  matter  was  to  be 

formed   the   conditions   of  the   es-  settled  otherwise  than  by  the  fu- 

crow.     On  the  faith  of  the  record  ture    agreement    of    the    parties: 

the  bank  took  a  mortgage  from  the  held,  there  was  no  escrow.     Miller 

grantee.     Held,   that   the    grantor  v.  Sears,  91  Cal.  282. 


601  EXECUTION. 

heirs,^^  and  in  like  manner  in  case  of  the  death  of  the  grantor, 
if  the  condition  is  complied  with  the  deed  may  be  turned  over 
to  the  grantee  bj  the  depositary  and  such  delivery  will  relate 
back  and  take  etTect  as  of  the  original  deli  very  .^^^ 

The  vital  principle  of  an  escrow  is  the  preliminary  delivery 
to  a  stranger,  and  a  delivery  in  escrow  or  upon  conditions 
cannot  be  made  to  the  grantee  himself.-*^  Such  a  delivery  is 
absolute;  and  though  it  be  contrary  to  intent  the  deed  takes 
effect  presently  as  the  deed  of  the  grantor,  discharged  of  the 
conditions  upon  which  it  was  made,  which,  so  far  as  the  vest- 
ing of  title  is  concerned,  are  thereby  rendered  nugatory.^i 
These  are  the  general  and  well-recognized  principles  govern- 
ing this  branch  of  the  law,  yet  they  are  not  to  be  taken  with- 
out qualification;  for  if  the  conditions  are  written  in  or  upon 
the  deed,^-  or  if  the  deed  be  simply  delivered  to  the  grantee  to 
await  his  detenuination  to  accept  or  not,-^  or  is  handed  to  the 
grantee  for  inspection,  or  is  received  or  obtained  by  the 
grantet^  in  any  manner  inconsistent  with  the  general  rules  of 
law  defining  and  fixing  the  method  of  the  delivery  of  deeds, 
then  the  foregoing  rule  would  not  apply.  If,  however,  a 
delivery  was  intended,  then  irrespective  of  any  other  inten- 
tions the  deed  becomes  absolute.^^ 

But  the  rule  that  a  deed  cannot  be  delivered  to  a  party  to 
whom  it  is  made  as  an  escrow,  and  that  in  such  case  the 
delivery  is  absolute  and  the  condition  nugatory,  is  applicable 
only  to  the  case  of  deeds  which  are  upon  their  face  complete 

18  Lindley  v.  Graff,  37  Minn.  338.    Wendlinger  v.  Smith,   75  Va.  300. 

19  Lindley  V.  Graff,  37  Minn.  338;  ^s  Brackett  v.  Barney,  28  N.  Y. 
Dettmer  v.  Behrens,  106  Iowa  585;     341. 

Stone  V.  Duvall,  77  111.  480.  -*  As  where  the   grantor  placed 

20  Carter  v.  Moulton,  5  Kan.  9;  a  deed  in  the  hands  of  the  grantee 
State  V.  Potter,  63  Mo.  212;  Weber  upon  the  condition  that  it  was  to 
V.  Christen,  121  111.  91;  McAllister  take  effect  only  in  case  the  grantor 
V.  Mitchner,  68  Miss.  672.  remained  in  Texas,  and  that  if  he 

21  Worrall  v.  Munn,  5  N.  Y.  229;  returned  it  was  to  be  delivered 
Berry  v.  Anderson,  22  Ind.  39;  back  and  be  of  no  force,  held  to  be 
Beers  v.  Beers,  22  Mich.  44;  Fair-  a  delivery  in  escrow,  but  being  to 
banks  v.  Metcalf,  8  Mass.  238;  the  grantee  and  not  to  a  stranger 
Stevenson  v.  Crapnell,  114  111.  19;  the  deed  became  absolute  to  the 
McCann  v.  Atherton,  106  111.  31;  grantee.  Stevenson  v.  Crapnell, 
Duncan  v.  Pope,  47  Ga.  445.  114    111.    19.      Where    the    grantor 

22  Berry  v.  Anderson,  22  Ind.  39;  voluntarily  delivers  a  deed  to  the 


DELIVERY.  OO.j 

oonti'iK't.s,  rcriuiiin^  iiolliin;;'  but   dclivciT  to  inaUc  tlifin   pci-- 
fcct  accoi-diiij;-  to  llu'  intention  of  the  parties.-'' 

The  dei)o.sitary  of  an  escrow  is  limited  strictly  to  the  condi- 
tions of  the  de|)osit,  a  ((rnipliance  with  which  alone  justiticH 
its  delivery.  lie  is  a  special,  not  a  general  a^ent,  and  the 
jieison  dealiuj;  with  him  is  bound  to  know  the  extent  of  his 
powers.-" 

>;  507.  Acceptance.  To  constitute  the  delivery  of  a  deed 
sullicient  to  pass  title  to  real  proi)erty  it  must  not  only  be 
delivered  by  the  grantor,  but  must  also  be  accepted  by  the 
ji:rantee.-'^  It  is  the  concuirence  of  the  two  acts  that  consti- 
tutes the  delivery;  and  either,  standing-  alone,  will  be  insutti- 
cient  to  divest  title.  An  express  dissent  on  the  part  of  the 
grantee  renders  the  instrument  ineffectual  and  void,  and  proof 
of  dissent  is  always  admissible.-*'  An  express  assent  is  not 
required,  however,  to  make  up  a  valid  delivery;  for  acceptance 
may  be  and  very  frequently  is  implied,  and  where  the  grant 
is  beneficial  to  the  grantee  his  consent  will  ordinarily  be  pre- 
sumed in  the  absence  of  proof  to  the  contrary .^^^  Neither  the 
presence  of  the  grantee  at  the  moment  of  delivery,  nor  his 
previous  authority  to  a  third  person  to  receive  the  deed  on 
his  behalf,  nor  yet  his  subsequent  express  assent  to  it,  are 
necessary  to  make  a  valid  delivery;  for  in  either  case  assent 
to  a  beueticial  grant  will  be  presumed,  although  of  course 
dissent  may  be  show^n  and  the  deed  thereby  rendered 
ineffectual.^^  Thus,  the  assent  of  an  infant,  or  an  imbecile, 
or  a  person  otherwise  incapacitated,  will  always  be  presumed 

grantee  he  cannot  show  by  parol  Jackson  v.  Phipps,  12  Johns.    (N. 

that  it  was  a  conditional  delivery.  Y.)  418. 

Williams  v.  Higgins,  69  Ala.  517.  -"*  Merrills  v.  Swift,  18  Conn.  257. 

-■'■  Wendlinger   v.    Smith,   75   Va.  -'-'Rogers   v.    Gary,   47   Mo.   235; 

309.  Dale  v.  Lincoln,  62  111.  22;  Cecil  v. 

20  Chicago,  etc.  Land  Co.  V.  Peck,  Beaver,   28   Iowa   241;    Mitchell   v. 

112  111.  408;  Evarts  V.  Agnes,  4  Wis.  Ryan,    3    Ohio    St.    377;    Dikes   v. 

343;    Smith   v.   Bank,   32  Vt.  350;  Miller,    24    Tex.    317;    Spencer    v. 

Ogden  V.  Ogden,  4  Ohio  St.  182.  Carr,    45    N.    Y.    406;    Jackson    v. 

2T  Commonwealth  v.  Jackson.  10  Bodle,  20  Johns.  (N.  Y.)  184;  Bow- 
Bush  (Ky.)  424;  Comer  v.  Bald-  den  v.  Parish,  86  Va.  67;  Boody  v. 
win,  16  Minn.  172;  Welch  v.  Sacket,  Davis,  20  N.  H.  140. 
12  Wis.  243;  Bank  v.  Webster,  44  "■"  Merrills  v.  Swift,  18  Conn.  257; 
N.  H.  2G4;  Oxnard  v.  Blake,  45  Me.  Thorne  v.  San  I<"rancisco.  4  Cal. 
602;  Stewart  v.  Redditt,  3  Md.  67;  169;  Weber  v.  Christen.  121  111.  91. 


606  EXECUTION. 

from  the  beneficial  nature  of  the  transaction  and  the  question 
of  knowledge  becomes  immaterial.^^ 

A  father  conveyed  to  his  daughter,  acceptance     would     be     presumed, 

six  years  old,  certain  realty  in  fee-  Vaughn  v.  Godman,  103  Ind.  499. 
simple  without  her  knowledge  and        ^'i  Sneathen  v.  Sneathen,  104  Mo. 

with  no  money  consideration,  and  201;    Colee  v.  Colee,  122  Ind.  109; 

two  days  thereafter  placed  the  deed  Hayes  v.  Boylan,  141  111.  400. 
on  record.    Held,  that  delivery  and 


CHAPTER   XX. 

ACKNOWLEDGMENT. 

§  508.  General  principles.  §  516.     Acknowledgment  by  corpo- 

509.  Who  may  take.  ration. 

510.  Form.  517.     Conveyances     by     married 

511.  Venue.  women. 

512.  Date.  518.     Conveyances   of   the   home- 

513.  Party  acknowledging  must  stead. 

be  identified.  519.     Authentication  by  officer. 

514.  Fact     of     acknowledgment      520.     Clerical  errors — Surplusage 

must  be  stated.  — Omissions. 

515.  Party  acknowledging  must       521.     Proof  of  official  character. 

understand  act. 

§  508.  General  principles.  The  primary  office  of  an  acknowl- 
edgment is  to  authenticate  the  conveyance  concerning  which 
it  is  made,  and  to  furnish  authority  for  the  production  of  the 
instrument  in  evidence  without  other  or  further  proof  of  its 
execution.^  The  certificate  of  authentication  is  no  part  of  the 
deed,  neither  is  it  the  act  of  either  party  to  it;^  and  although 
a  deed  is  defectively  acknowledged  or  certified,  or  even  not 
acknowledged  at  all,  if  made  by  persons  who  are  sui  juris, 
it  is  still  valid  and  effectual  as  between  the  parties  and  subse- 
quent purchasers  with  actual  notice,  and  passes  title  equally 
with  one  duly  acknowledged  and  certified.^  The  certificate 
cannot  affect  the  force  of  the  instrument,*  but  is  only  evidence 
in  regard  to  its  execution,  affording  prima  /acie  proof  of  facts, 
which  in  its  absence,  may  be  established  by  other  evidence. 
It  is,  however,  a  prerequisite  for  registration  in  a  majority 
of  the  states,  and  a  necessary  incident  to  every  deed  designed 
to  furnish  constructive  notice  under  the  recording  acts;  and 
where  b}'  reason  of  defects  or  ooiiissions  the  statutory  require- 
ments are  not  substantially  complied  witli,  the  instrument  is 
not  legally  recordable,  and  although  actually  transcribed  the 
record  thereof  will  not  afford  constructive  notice,"^ 

1  Warvelle  on  Abstracts.  171-185,  3  Stevens  v.  Hampton.  46  Mo. 
and  cases  cited.  404;   Hoy  v.  Allen.  27  Iowa  208. 

2  Harrington  v.  Fish,  10  Mich.  *  Dale  v.  Thurlow.  12  Met.  157. 
415;  Gray  v.  Ulrich,  8  Kan.  112.  '•  Pringle  v.  Dunn,  37  Wis.  449; 

607 


G08 


ACKNOWLEDGMENT. 


The  formality  of  ucknowledf^mciit  has  been  rendered 
extremely  simple  of  late  years,  and  a  substantial  compliance 
with  the  statute  prescribing  its  form  and  requisites  is  all  that 
is  re(iuired  in  an  ordinary  certificate."  Material  omissions, 
unaided  by  other  circumstances,  have  frequently  been  held 
to  vitiate  the  acknowledgment;'''  yet  generally,  when  the 
defect  can  be  reconciled,  or  does  not  defeat  the  acknowledg- 
ment by  indefiniteness  or  uncertainty,  it  will  not  invalidate.^ 
Courts  are  always  inclined  to  construe  clerical  errors  liber- 
ally;'' and  it  is  the  policy  of  the  law  to  uphold  certificates 
whenever  substance  is  found,  and  not  to  suffer  conveyances, 
or  proof  of  them,  to  be  defeated  by  technical  or  unsubstantial 
objections,!^  and  in  construing  them  resort  may  always  be 
had  to  the  deed  or  instrument  to  which  they  are  appended.!^ 
Nothing,  however,  will  ordinarily  be  presumed  in  favor  of  a 
certificate,  which  should  state  all  the  facts  necessary  to  a 
valid  official  act.^^ 

§  509.  Who  may  take.  The  right  to  take  and  certify 
acknowledgment  of  deeds  is  wholly  statutory,  and  can  be 
exercised  only  by  such  officers  as  are  directly  named  or  by 
necessary  implication  designated  or  pointed  out.  This  juris- 
diction is  usually  divided  into  three  classes:  first,  where  the 
Bass  V.  Estill,  50  Miss.  300;  Willard    Tenney  v.  East  Warren  Co.  43  N. 


V.  Cramer,  36  Iowa  22. 

6Russ  V.  Wingate,  30  Wis.  440; 
Bradford  v.  Dawson,  2  Ala.  203; 
Calumet  Co.  v.  Russell,  68  111.  426; 
Carpenter  v.  Dexter,  8  Wall.  (U. 
S.)  513;  Ogden  v.  Waters,  12  Kan. 
282;  Jacoway  v.  Gault,  20  Ark.  190; 
Warren  v.  Hardy,  6  Md.  525;  Alex- 
ander V.  Merry,  9  Mo.  510;  Barton 
V.  Morris,  15  Ohio  408;  Henderson 
V.  Grewell,  8  Cal.  581;  Dorn  v. 
Best,  15  Tex.  62. 

7  Hiss    V.    McCabe,    45    Md.    77; 


H.  343. 

»  Scharfenburg  v.  Bishop,  35 
Iowa  60;  Russ  v.  Wingate,  30  Miss. 
440. 

10  Wells  V.  Atkinson,  24  Minn. 
161;  Kelly  v.  Calhoun,  95  U.  S. 
710. 

11  Wells  V.  Atkinson,  24  Minn. 
161;  Tubbs  v.  Gatewood,  26  Ark. 
128;  Barnet  v.  Praskauer,  62  Ala. 
486. 

12  Witmore  v.  Laird,  5  Biss.  (C. 
Ct.)  160;  Jacoway  v.  Gault,  20  Ark. 


Smith  V.  Hunt,  13  Ohio  260;  Hay-    190;   Knight  v.  Smith,  1  Ore.  276. 


den  V.  Westcott,  11  Conn.  129. 

8  Hartshorn  v.  Dawson,  79  111. 
108;  Scharfenburg  v.  Bishop,  35 
Iowa  60;  Sanford  v.  Bulkley,  30 
Conn.  344;  Magness  v.  Arnold,  31 
Ark.  103;  Chandler  v.  Spear,  22  Vt. 
388;     Dail  v.   Moore,   51  Mo.  589; 


The  taking  of  an  acknowledgment 
is  now  generally  regarded  as  a 
ministerial  act  (Odiorne  v.  Mason, 
9  N.  H.  24;  Biscoe  v.  Bird,  15  Ark. 
655;  Lynch  v.  Livingstone,  6  N.  Y. 
422),  and  dependent  on  statute,  and 
the  certificate  must  show  that  the 


ACKNOWLEDGMENT. 


609 


proof  is  made  within  tin*  state;  Hecond,  wIktc  the  proof  is 
made  willioiit  the  state,  but  within  the  United  States  or  the 
territories;  and  third,  where  the  proof  is  made  in  a  foreign 
country.  Officers  of  the  first  and  second  classes  are  usually 
notaries  public,  the  officers  of  courts  havinj^  a  seal,  and  jus- 
tices of  the  peace.  In  the  second  class  is  also  an  officer  known 
as  a  coniniissiouer  of  deeds.  Officers  of  the  third  class  include 
ministers  or  secretaries  of  legations,  consuls  of  the  United 
States,  and  generally  any  officer  authorized  by  the  laws  of 
such  foreign  countries  to  take  acknowledgments  of  convey- 
ances. 

It  would  scarcely  seem  necessary  to  state  that  a  grantee, 
notwithstanding  he  may  be  otherwise  (lualified,  is  not  com- 
petent to  take  the  acknowledgment  of  his  grantor,^ ^  even 
though  he  is  merely  a  trustee;^*  and  generally,  any  interest 
whatever  in  the  proceeding,  no  matter  how  slight  or  remote, 
will  disqualify  an  otiicer  in  those  states  where  acknowledg- 
ment is  regarded  as  an  act  judicial  in  its  nature;  but  this 
restriction  does  not  extend  to  the  attesting  witnesses,  who 
may  properly  act  in  both  capacities.^  ^     Nor  can  a  grantor 


statutory  requirements  have  been 
substantially  pursued.  Meddock  v. 
Williams,  12  Ohio  377. 

1'  Beaman  v.  Whitney,  22  Me. 
413;  Groesbeck  v.  Seeley,  13  Mich. 
329.  The  impropriety  of  such,  on 
general  principles,  is  manifest;  but 
it  is  further  held,  in  some  states, 
that  the  taking  of  an  acknowledg- 
ment is  a  quasi  judicial  act,  the 
officer  acting  in  a  judicial  character 
in  determining  whether  the  per- 
son representing  himself  to  be,  or 
represented  by  some  one  else  to  be, 
the  grantor  named  in  the  convey- 
ance, actually  is  the  grantor;  and 
in  determining  further  whether  the 
person  thus  adjudged  to  be  the 
grantor  does  actually  and  truly  ac- 
knowledge that  he  executed  the 
instrument.  By  his  certificate  he 
makes  an  oflScial  record  of  his  ad- 
judication; and  inasmuch  as  no 
man  can  be   a  judge  in  his  own 


case,  it  follows  that  the  grantee  in 
a  deed  can  never  act  as  an  officer 
in  taking  an  acknowledgment  to 
the  conveyance.  Wasson  v.  Con- 
ner, 54  Miss.  351;  Davis  v.  Beazley, 
75  Va.  491.  But  where  a  sheriff's 
deed  was  acknowledged  in  a  court 
over  which  one  of  the  grantees  pre- 
sided as  judge,  held,  no  objection 
to  the  deed.  Lewis  v.  Curry,  74 
Mo.  49;  and  it  would  seem  that 
in  Kentucky,  where  only  the  coun- 
ty clerk  and  his  deputies  are  au- 
thorized to  take  acknowledgments 
of  deeds,  the  clerk  may  take  and 
certify  the  acknowledgment  of  a 
deed  in  which  he  is  named  as 
grantee.  Stevenson  v.  Brasher,  13 
S.  W.  Rep.  242. 

'•Dail  V.  Morse,  51  Mo.  589; 
Brown  v.  Moore,  38  Tex.  645;  Bow- 
den  V.  Parrish,  86  Va.  67. 

15  Baird  v.  Evans,  58  Ga.  350. 


39 


610  ACKNOWLEDGMENT. 

take  his  own  acknowledgment.^^  It  would  seem,  however, 
that  the  acknowledgment  of  a  deed  to  a  married  woman  is 
not  invalid  because  taken  before  the  husband  of  the  grantee, 
who  was  a  properl}'  qualified  officer.^ "^ 

A  question  of  a  similar  nature  arises  where  the  conveyance 
is  made  to  a  corporation  and  the  acknowledgment  of  the  deed 
is  taken  by  a  stockholder  of  such  corporation.  As  to  whether 
an  officer  so  interested  is  a  competent  person  to  take  an 
acknowledgment  and  as  to  the  validity  of  a  deed  so  certified 
with  respect  to  the  homestead  rights  of  the  grantors,  the 
authorities  are  not  in  accord.  It  has  been  held,  and  it  would 
seem  with  the  better  reason,  that  while  acknowledgments 
taken  before  officers  who  are  related  to  either  party  or  inter- 
ested in  the  instruments  are  contrary  to  public  policy,  and  by 
no  means  to  be  encouraged,  yet  such  acknowledgments  are 
not  absolutely  void  because  of  such  interest  or  relationship, 
without  more.  Where  there  is  no  imputation  or  charge  of 
improper  conduct  or  bad  faith  or  undue  advantage  arising  out 
of  such  interest  or  relationship,  the  mere  fact  that  the 
acknowledgment  was  taken  before  such  officer  will  not  vitiate 
the  instrument,  nor  render  it  void,  if  it  is  otherwise  free  from 
objection  or  criticism.^^  Much  of  the  uncertainty  which 
attends  the  solution  of  this  question  arises  from  the  different 
estimates  which  are  placed  upon  the  act  of  acknowledgment, 
and  as  to  whether  it  is  to  be  regarded  as  judicial  or  ministerial 
in  its  nature.!'-* 

Clerks  of  courts  having  a  seal  have  general  jurisdiction  in 
all  of  the  states  and  territories,^^  and  a  deputy  is  usually 

16  Davis  V.  Beazley,  75  Va.  491.        held  to  be  a  judicial  act  in  other 

17  Kimball  v.  Johnson,  14  Wis.  states,  to-wit,  Alabama,  California, 
674.  Iowa,    Missouri,    North    Carolina, 

IS  Cooper    v.    Building    Associa-  Pennsylvania,  Virginia,  West  Vir- 

tion,  37  S.  W.  Rep.  12.  ginia,    Mississippi.     In   Tennessee 

19  It  has  been  held  to  be  a  minis-  the  courts  have  held  that  the  act 

terial    act    in    the    United    States  is  judicial  or   quasi  judicial,   and 

courts   and   in   the   courts   of   Ar-  especially  so  when  it  involves  the 

kansas,  Georgia,  Illinois,  Kentucky,  privy    examination    of   a   married 

Maine,    Massachusetts,    Minnesota,  woman.     Shields  v.  Netherland,  5 

New  Hampshire,  New  York,  Mary-  Lea  (Tenn.)   197. 
land  and  Ohio,  and  in  these  states       20  May  be  taken  by  the  judge  of  a 

it  is  held  that  an  officer  may  take  court  of  record  who  is  clerk  of  his 

acknowledgment  though  related  or  own  court,  and  the  attestation  cer- 

interested   or  a  party.     But  it  is  tified    by   him    under   the   seal   of 


ACKNOWLEDGMENT. 


611 


pc'i'inittc'd  to  tako  acknowlcd^incnts  \vlionov<'r  tin*  principal 
Tiiight  if  present.-'  lint  jnst  how  the  attentalion  kIiouM  be 
made,  where  the  act  is  performed  by  a  deputy,  seems  to  be  a 
matter  of  disjtnte.  In  some  states  it  wonld  appear  that  the 
act  must  purport  to  be  the  act  of  tlie  principal  and  be  si<^ued 
with  his  name  per  deputy;-^  in  others  that  the  certificate 
must  appear  to  be  the  act  of  tlie  i)rincipal  without  reference 
to  the  deputy ;-•■'  and  again  in  others  that  the  deputy  may 
'assume  to  exercise  all  the  powers  of  his  principal  without 
nu'ntioning  or  alludin<jj  to  him  in  the  body  of  the  certificate 
or  signature,  the  deputy  in  both  cases  signing  his  own  name 
and  title  of  office.-^ 

Mayors  of  cities  are  also  frequently  given  this  power,  but  it 
would  seem  that  the  mayor  of  a  town  would  have  no  right 
to  exercise  the  right  under  the  authority  given  to  mayors  of 
cities. 

§  510.  Form.  It  has  been  repeatedly  held  by  courts  that  in 
the  acknowledgment  of  deeds  it  is  sufficient  if  it  appears  that 
the  statute  has  been  substantially  observed  and  followed.^^ 
A  mere  literal  compliance  is  not  demanded  or  expected.-" 
The  policy  of  the  law  is  to  uphold  eonveyances,^^  and  in  the 


the  court.     Moore  v.  Hill,  59   Ga. 
760. 

21  Touchard  v.  Crow,  20  Cal.  150; 
Hope  V.  Sawyer,  15  Kan.  252;  Tal- 
bott  V.  Hooser,  12  Bush  (Ky.)  408; 
Gibbons  v.  Gentry,  20  Mo.  468; 
Rose  V.  Newman,  26  Tex.  131; 
Kemp  V.  Porter,  7  Ala.  137. 

22  Abrams  v.  Erwin,  9  Iowa  87; 
Gibbons  v.  Gentry,  20  Mo.  468. 

23  Talbott  V.  Hooser,  12  Bush 
(Ky.)  408.  And  where  one  deputy 
clerk  takes  an  acknowledgment  of 
a  deed,  indorsing  on  it  a  memoran- 
dum thereof,  another  deputy  may 
write  out  and  sign  the  certificate. 
Drye  v.  Cook,  14  Bush  (Ky.)   459. 

24  McRae  v.  McGuire,  23  Miss. 
100;  Beaumont  v.  Yeatman,  8 
Humph.  (Tenn.)  542;  Touchard  v. 
Crow,  20  Cal.  150.  In  this  latter 
case  the  attestation  road:  "Wit- 
ness my  hand  and  seal  of  court 
affixed   at  office   this   30th   day   of 


July,  1852.  John  A.  Brewster,  dep- 
uty clerk  of  Sonoma  county."  In 
Woodruff  V.  McHarry,  56  111.  218, 
where  a  deed  was  acknowledged 
before  a  person  who  described  him- 
self, in  his  certificate,  as  clerk  pro 
tempore  of  the  United  States  cir- 
cuit court  for  the  southern  district 
of  Illinois,  it  was  regarded  as  suffi- 
cient if  the  person  taking  the  ac- 
knowledgment was  clerk  de  facto, 
without  reference  to  the  temporary 
character  of  his  appointment.  To 
same  effect.  Brown  v.  Lunt,  37  Me. 
423;  Prescott  v.  Hayes,  42  N.  H. 
56. 

2'' Knight  V.  Smith,  1  Ore.  276; 
Jacoway  v.  Gault,  20  Ark.  190; 
Bell  V.  Evans,  10  Iowa  353. 

-'■•Stewart  v.  Dutton,  39  111.  91; 
Wickorsham  v.  Reovcs.  1  Iowa  413. 

•-■•  Wells  V.  Atkinson,  24  Minn. 
161. 


G12  ACKNOWLEDGMENT. 

proof  of  them  a  liberal  construction  is  always  allowed.2« 
Where  a  conveyance  of  lands  in  one  state  is  acknowledged 
before  a  commissioner  in  another  state,  the  same  form  must 
be  used  as  if  the  acknowledgment  were  made  in  the  state 
where  the  land  is  situate.^o 

§  511.  Venue.  Exjiress  statutory  requirements  providing 
for  the  taking  of  the  acknowledgment  in  the  county  where 
the  land  is  situated,  or  where  the  parties  reside,  etc.,  are 
usually  held  to  be  mandatory,  and  compliance  in  this  respect 
is  essential  to  validity  ;3o  but  ordinarily  an  acknowledgment 
may  be  made  anywhere  before  an  officer  authorized  by  the 
laws  of  the  state  where  the  land  is  situated  to  take  and  certify 
the  same.  In  every  instance,  however,  the  certificate  must 
show  on  its  face  that  it  was  made  at  some  assignable  locality, 
and  within  the  jurisdiction  of  the  certifying  officer.^^  This 
is  accomplished  by  a  note  of  the  county  and  state  called  the 
venue,  immediately  preceding  the  certificate  proper,  together 
with  the  usual  "ss"  or  scilicet,  which  literally  means,  ''let  it 

be  known,"  or  "be  it  known,  that  in  the  state  of ,  at  the 

county  of ,"  etc.    The  use  of  the  venue  in  legal  and  other 

writings  cannot  safely  be  dispensed  with,  for  although  tech- 
nical yet  it  is  sure  and  certain. 

The  omission  of  venue,  where  there  is  nothing  in  the  cer- 
tificate to  show  where  the  officer  who  took  the  acknowledg- 
ment resided  and  acted,  is  generally  a  fatal  defect  ;32  and  the 
same  is  true  of  a  partial  venue  if  unaided  by  other  facts.^^    It 

28  Kelly  V.  Calhoun,  95  U.  S.  710;  32  Vance    v.     Schuyler,    1    Gilm. 

Henderson  v.  Grewell,  8  Cal.  581;  (111.)    160. 

Warren  v.  Hardy,  6  Md.  525;  Alex-  ss  Hardin  v.  Kirk,  49  111.  153.     In 

ander  v.  Merry,  9  Mo.  510;  Barton  this  case  the  venue  to  the  certifi- 

V.  Morris,  15  Ohio  408;   Monroe  v.  cate  was,  "County  of  New  York." 

Arledge,  23  Tex.  478.    The  omission  The  court  say:    "This  venue  may 

of    the    statement    of    immaterial  apply  equally  well  to  a  county  of 

facts,     notwithstanding    they    are  the  same  name  in  any  state  of  the 

part  of  a  prescribed  form,  will  not  Union.     There   is   nothing   in    the 

constitute    a    fatal    defect    in    the  deed  from  which  it  can  be  inferred 

certificate.    Bradford  v.  Dawson,  2  that  the  acknowledgment  was  tak- 

Ala.  203.  en  in  the  state  of  New  York.     It 

23  Keller  v.  Moore,  51  Ala.  340.  must  appear  from  the  acknowledg- 

30  Dickerson  v.  Talbot,  14  B.  ment  where  it  was  made  and  cer- 
Mon.  (Ky.)  49;  Hughes  v.  Wilkin-  tified,  or  by  taking  the  acknowl- 
son,  37  Miss.  482.  edgment  and  the  deed  together  we 

31  Montag  V.  Linn,  19  111.  399.  must  be  able  to  presume  in  what 


ACKNOWLEDGMENT.  613 

has  been  held,  however,  tliat  the  omiHsion  of  the  vonue  in  a 
ft' rt  ill  calf  of  au  ackiiowlcd^Miiciil,  taken  by  a  justice  of  the 
peace,  may  be  obviated  by  proof  lliat  siicli  ofticer  was  at  the 
lime  a  justice  of  the  peace  in  the  county  wliere  if  was  taken, 
and  as  such  took  it;'"  and  further,  that  tlie  omission  of  the 
name  of  tlie  county  in  the  caption  to  a  certificate  otherwise 
formal  and  sullicient,  where  the  defect  was  supplied  ))y  tlie 
seal  attached  so  as  to  show  the  venue  or  county,  only  rendered 
the  certificate  informal  and  not  void.^'' 

Ordinarily  a  notary  may  exercise  his  office  anywhere  in  the 
state  of  his  appointment;  and  justices  of  the  peace  have  in 
many  instances  been  held  to  possess  the  same  power,  the  act 
beiu*,'  ministerial  and  not  judicial.'"''  Tiie  theory  upon  which 
this  doctrine  proceeds  is  that  the  authority  to  perform  a  min- 
isterial act  attaches  to  the  officer  wherever  he  may  be,  unless 
restricted  by  statute  prescribing  territorial  limits.  Where  the 
judicial  theory  of  the  act  obtains  the  rule  would  probably  be 
different.  The  presumption  is  that  the  act  was  perfomied 
within  the  officer's  jurisdiction.^^ 

§  512.  Date.  It  does  not  appear  that  a  date  is  essential  to 
a  certificate,'^^  even  though  the  statutory  form  may  provide 
for  the  same;39  and  where  the  statute  requires  the  date  to  be 
stated,  it  seems  that  an  omission  in  this  particular  may  be 
supplied  by  resorting  to  the  deed  itself,  or  to  the  certificate  of 
magistracy  if  any  is  annexed.'*^ 

§513.    Party   acknowledging  must   be  sufficiently   identified. 
Tlie  first  of  the  two  primary  and  indispensable  elements  of  .i 
certificate  of  acknowledgment  consists  of  the  identification  of 
the  party  whose  act  it  purports  to  be.     The  statutory  pro- 
state it  was  taken.    The  officer  tak-        "i"  Chiniquy  v.  Catholic  Bishop  of 
ing  it  can  act  only  within  the  terri-    Chicago,  41  111.  148. 
torial    limits    of    his    jurisdiction,        •■*«  Day  v.  Brooks,  30  Mo.  515;  Bis- 
and   it  must  appear  that  the   act    coe  v.  Boyd,  15  Ark.  655;  Learned 
v/as  performed  within  these  limits,    v.    Allen.    14    Allen    (Mass.)     109; 
In  this  case  the  certificate  and  deed    Odiorne  v.  Mason,  9  N.  H.  30. 
failed   to   show   where    the   officer        ;<"  Rackleff  v.  Norton.  19  Me.  274; 
acted   at   the   time   when   he   took    Bradley  v.  West.  60  Mo.  33. 
this    acknowledgment,   and    is   de-        3«  Irving  v.  Brownell,  11  III.  402; 
fective,  and  the  deed  is  therefore    Rackleff  v.  Norton,  19  Me.  274. 
inadmissible."  ^'o  Hobson  v.  Kissam,  8  Ala.  357. 

••»!  Graham   v.   Anderson,    42    111.        ^o  Bradford    v.    Dawson,    2    Ala. 
514.  203;  Kelly  v.Rosenstock,15  Md.389. 


G14 


ACKNOWLEDGMENT. 


visions  of  all  the  states,  however  diverse  they  may  be  on  other 
subjects  connected  with  execution,  are  all  united  upon  this 
point;  and  unless  the  person  offering  to  make  such  acknowl- 
edgment shall  be  personally  known  to  the  certifying  oflScer  to 
be  the  real  person  who  executed  the  deed,  or  shall  be  proved 
to  be  such  by  a  credible  witness,  such  oflScer  has  no  authority 
to  take  or  certify  the  acknowledgment.  The  evident  object  of 
these  provisions  is  to  prevent  one  individual  from  personating 
another,^^  and  this  fact  of  identity  must  aflSrmatively  appear 
in  the  certificate.  The  officer  must  know  the  person  in  whose 
name  the  acknowledgment  is  proposed  to  be  made,  and  must 
certify  to  such  knowledge;  and  a  substantial  compliance  with 
this  requirement  is  indispensable  to  the  validity  of  the 
acknowledgment.^- 

A  literal  cohipliance  in  this  regard  is  not  essential,  however, 
provided  the  fact  substantially  appears,^^  and  other  language 
than  that  used  by  the  statute  may  be  employed  where  the 
import  is  the  same.^^    Courts  are  always  inclined  to  construe 

iiMcConnel    v.    Reed,    2    Scam.    oflBcer's  presence,  is  good  as  an  at- 


(111.)   371. 

42  Fryer  v.  Rockefeller,  63  N.  Y. 
268;  Fogarty  v.  Finlay,  10  Cal.  239; 
Gove  V.  Gather,  23  111.  634;  Brinton 
V.  Seevers,  12  Iowa  389;  Garnier  v. 
Barry,  28  Mo.  438;  Pinckney  v. 
Burrage,  31  N.  J.  L.  21;  Smith  v. 
Garden,  28  Wis.  685;  Carpenter  v. 
Dexter,  8  Wall.  (U.  S.)  513;  Pen- 
dleton V.  Button,  3  Conn.  406.  An 
introduction  by  a  mutual  friend  is 
sufiBcient  to  satisfy  a  statutory  re- 
quirement that  the  officer  taking 
the  acknowledgment  shall  know  or 
have  satisfactory  evidence  that  the 
person  making  such  acknowledg- 
ment is  the  individual  described 
in  and  who  executed  the  instru- 
ment, if  such  introduction  satisfies 
the  conscience  of  the  officer  as  to 
the  identity  of  the  party.  Wood  v. 
Back,  54  Barb.  (N.  Y.)  134.  A  cer- 
tificate of  acknowledgment  which 
fails  to  recite  that  the  grantor  was 
known  to  the  officer,  but  does  re- 
cite that  the  grantor  signed  in  the 


testation,  though  defective  as  an 
acknowledgment.  Rogers  v.  Adams, 
66  Ala.  600. 

"Tully  V.  Davis,  30  111.  103; 
Rosenthal  v.  Griffin,  23  Iowa  263; 
Robson  V.  Thomas,  55  Mo.  581; 
Warner  v.  Hardy,  6  Md.  525. 

44  Bell  V.  Evans,  10  Iowa  353; 
Kelly  V.  Calhoun,  95  U.  S.  710; 
Henderson  v.  Grewell,  8  Cal.  581; 
Thurman  v.  Cameron,  24  Wend. 
(N.  Y.)  87.  Where  a  certificate 
stated  that  "personally  appeared 
before   me   P.   H.    and   E.   H.,   his 

wife,  who  personally  known 

to  me,"  etc.,  omitting  "are"  after 
"who,"  it  was  held  that  such  omis- 
sion did  not  impair  the  deed,  as 
"who"  might  be  disregarded  as  su- 
perfluous, and  the  certificate  would 
then  be  correct.  Hartshorn  v.  Daw- 
son, 79  III.  108.  So,  where  the 
word  "appeared"  was  omitted  after 
the  phrase  "before  me  personally," 
the  omission  was  held  to  be  a  cler- 
ical  error,    and   not  fatal   to   the 


ACKNOWLEDGMENT.  6l5 

tnatters  of  this  kiud  liberally;^''  and  whenever  the  defect  can 
be  reconcik'd,  or  doe.s  not  defeat  the  ackuowk-dj^ment  by 
indeflniteness  or  uncertainty,  it  will  not  invalidate.*® 

A  material  omission  unaided  by  other  circumstances,  or  a 
failure  to  designate  the  person  acknowledginj^  with  certainty, 

as  where  the  acknowledgment  purports  to  be  made  by  

Smith,  without  other  designation  of  the  person,"*^  or  where 
there  is  an  entire  omission  of  the  name  of  the  grantor,  will 
ordinarily  vitiate  the  certificate,  although  it  has  been  held 
that  if  the  certificate  shows  that  the  party  who  appeared 
before  the  officer  was  the  grantor  and  that  he  and  no  one  else 
made  the  acknowledgment,***  or  where  he  is  referred  to  by 
name  in  that  part  of  the  certificate  referring  to  the  wife's 
acknowledgment,*'-*  this  will  be  sutficient. 

§  514.  Fact  of  acknowledgment  must  be  stated.  The  sec- 
ond indispensable  requisite  to  a  valid  certificate  is  a  state- 
ment of  the  fact  of  acknowledgment;  for  not  only  must  the 
identity  of  the  parties  appear,  but  it  must  further  be  shown 
that  they  afiirmed  the  execution  of  the  instrument  as  their 
free  and  voluntary  act.  But  here,  as  in  the  fonner  instance, 
form  is  not  material,  provided  substance  be  found.  No  term, 
however,  so  fully  expresses  the  fact  as  the  word  "acknowl- 
edge." This,  by  immemorial  usage  as  well  as  statutory  enact- 
ment, has  obtained  a  known  and  established  signification 
when  used  in  this  connection,  and  its  employment,  or  words  of 
equivalent  import,  is  absolutely  necessary  to  give  legal  etlect 
to  the  certificate.'^o     In  the  case  of  ancient  deeds  much  lati- 

validity  of  the  instrument.   Scharf-  -Js  Wilcoxon    v.    Osborn,    77    Mo. 

enburg  v.  Bishop,  35  Iowa  60.     A  621.    But  even  under  such  circum- 

certificate    that    A.,    "to    me    well  stances  the  fact  of  personal  knowl- 

known,    acknowledged,"    etc.,    was  edge  must  appear;  and  a  certificate 

held  to  be  substantially  in  the  form  which  simply  describes  the  persons 

given    by    statute,    viz.:     that    A.,  acknowledging  as  "grantors  of  the 

"known   to   me    to   be   the   person  within  indenture,"  without  stating 

whose  name  is  subscribed  to  the  that  they  were  known  to  the  offi- 

foregoing      instrument,     acknowl-  cer  to   be   the   same   persons   who 

edged,"  etc.     Watkins  v.  Hall,  57  are  described  in  and  who  executed 

Tex.  1.  the    deed,    would    be    insufficient. 

■»5  Harrington  v.   Fish,  10   Mich.  Fryer  v.  Rockefeller,  63  N.  Y.  268. 

415.  '»  Magness    v.    Arnold,    31    Ark. 

•««  Ogden  V.  Walters,  12  Kan.  282.  103. 

••"  Hiss  v.  McCabe,  45  Md.  77.  so  Bryan  v.  Ramirez,  8  Cal.  461; 


616  ACKNOWLEDGMENT. 

tude  has  been  allowed,  and  the  exceptions  to  the  foregoing 
rule,  if  such  they  can  be  called,  have  mainly  arisen  in  the  con- 
struction of  such  instruments.^^ 

§  515.  Party  acknowledging  must  understand  purport  of 
act.  As  a  rule,  an  otlictM'  who  takes  an  acknowledgment  is 
under  no  obligation  to  explain  the  deed,  yet  the  person  so 
acknowledging  should  understand  the  nature  of  his  act. 
Hence,  it  has  been  held  that  a  notary's  certificate  of  acknowl- 
edgment is  of  little  force  when  the  person  purporting  to  make 
the  acknowledgment  does  not  understand  English,  and  the 
notary  has  not  explained  the  effect  of  the  act  in  such  person's 
own  language,  and  seen  to  it  himself  that  it  was  understood.^^ 

§  516.  Acknowledgment  by  corporation.  In  many,  per- 
haps a  majority,  of  the  states,  there  is  no  statutory  provision 
relative  to  the  acknowledgment  of  deeds  by  corporations.  In 
such  cases  the  officer  signing  the  corporate  name  and  affixing 
the  seal  is  the  party  executing  the  deed  within  the  meaning  of 
the  statute  requiring  deeds  to  be  acknowledged  by  the 
grantor,^^  In  framing  the  certificate  it  should  appear  that  the 
officer  acknowledged  the  execution  of  the  instrument  as  his 
own  act  and  as  the  act  of  the  corporation  as  well. 

§  517.  Conveyances  by  married  women.  Notwithstanding 
the  fact  that  in  a  majority  of  the  states  a  married  woman  is 
now  as  free  to  acquire,  hold  and  transmit  real  property  by 
good  and  indefeasible  title  as  her  husband,  it  must  ever  be 
borne  in  mind  that  she  has  no  legal  existence  or  power  to 
transfer  her  interest  in  lands  except  through  the  statutory 
channel.  This  channel  may  be  broad  or  contracted,  according 
to  the  policy  of  the  state,  and  varying  from  time  to  time  as 
impediments  have  been  removed,  but  it  is  a  groove  through 
which  her  title  must  pass  to  be  valid;  and  any  departure  from 

Short  V.  Conlee,  28  111.  219;  Cabell  Dewey  v.  Campau,  4  Mich.  565. 

V.  Grubbs,  48  Mo.  353;   Stanton  v.  "'i  See   Jackson   v.   Gilchrist,    15 

Button,    2    Conn.    527;     Dewey    v.  Johns.  89. 

Campau,  4  Mich.  565;  Huff  v.  Webb.  "'^  Harrison  v.  Oakman,  56  Mich. 

64  Tex.  284.     The  formality  of  ac-  390. 

knowledgment  has  been  held  to  be  "••'  Lovett    v.    Saw-mill    Asso.    6 

sufficiently  expressed  by  the  term  Paige  (N.  Y.)  54;  Kelly  v.  Calhoun, 

"deposes  and  says."     Chouteau  v.  5  Otto    (U.  S.)    710.     A  corporate 

Allen,  70  Mo.  290.     But  the  word  deed  usually  bears  the  signatures 

"stated"  has  been  held  insufficient,  of  both  the  president  and  secretary 


ACKNOWLEDGMENT.  G17 

the  course  marked  out  by  statute  is  to  reuder  the  conveyance 
nugatory  and  without  h'j^al  etlect.  In  numy  instanceH  the  pre- 
scribed mode  of  executing  the  conveyance  confers  upon  ht-r 
the  power  to  convey,  and  here  rests  the  broad  distinction 
between  conveyances  by  married  wmuen  and  others  who  are 
sui  juri^.  >Vhen  the  power  <'xists  independent  of  its  mode  of 
execution,  and  has  been  defectively  executed,  it  is  not  a  case 
of  want  of  power,  but  of  defective  execution,  which  a  court  of 
equity  will  aid.  Rut  where  the  power  and  mode  of  execution 
are  inseparable — the  i)ower  resulting  from  the  mode — and 
that  mode  has  not  been  pursued,  it  is  not  a  case  of  defective 
execution,  but  a  want  of  power,  which  a  court  of  equity  can- 
not aid.  Therefore,  when  a  married  woman  attempts  to  con- 
vey, and  lacks  power  from  not  pursuing  the  mode  prescribed, 
oourts  will  not  relieve,  because  to  amend  the  mode  is  to  create 
the  power.^*  The  acknowledgment,  therefore,  is  an  essential 
part  of  a  married  woman's  deed,^^  and  not  merely  an  authen- 
tication. The  special  requirements  of  the  statute,  if  any,  must 
be  full}'  complied  with,  and  the  fact  of  compliance  must  be 
fully  and  clearly  set  forth  in  the  certificate.''^"  The  rules  of 
construction,  however,  are  the  same  as  in  other  cases  of 
acknowledgment;  and  it  will  be  understood  that,  while  com- 
pliance is  necessary  to  impart  validity,  the  strict  letter  of  the 
statute  need  not  necessarily'  be  followed,  a  substantial  com- 
pliance being  all  that  is  required.^" 

By  the  strict  rules  of  the  common  law  the  legal  existence  of 
the  wife  was  merged  in  the  husband,  and  she  could  convey  her 
lands  only  by  uniting  with  him  in  levying  a  fine,  which,  being 
a  solemn  proceeding  of  record,  the  judges  were  supposed  to 
watch  over  and  protect  her  rights,  and  ascertain  by  a  private 
examination  that  her  participation  was  voluntary.  The  stat- 
ute relating  to  acknowledgments  generally  adopted  in   this 

and  both  of  these  oflBcers  should,  v.  Mcintosh,  12  Ohio  St.  231;  Laird 

in  such  case,  unite  in  the  acknowl-  v.    Scott,    5    Heisk.    (Tenn.)    314; 

edgment.  Johns    v.    Reardon.    11    Md.    465; 

''+ Silliman  v.  Cummins,  13  Ohio  Grove  v.  Zumbro,  14  Gratt.   (Va.) 

IIG;    Grove   v.   Zumbro,    14    Gratt.  501. 
(Va.)  501.  "Tubbs   v.    Gatewood.    26    Ark. 

•'•'•Mason  v.  Brock,  12  111.  273.  128;  Brown  v.  Farran,  3  Ohio  140; 

n«  Landers  v.  Bolton,  26  Cal.  408;  Thayer  v.  Torrey,  37  N.  J.  L.  339; 

Lindly  v.  Smith,  46  111.  523;  Chau-  Reynolds  v.  Kingsbury,  15  Iowa  283; 

vin  V.  Wagner.  18  Mo.  531;   Ward  Goode  v.  Smith.  13  Cal.  81;  Stuart 


618  ACKNOWLEDGMENT. 

country  provided  a  substitute  for  tlie  common-law  fine,  and  in 
lieu  thereof  prescribed  an  examination  and  certificate  by  a 
designated  officer.  But  while  it  enlarged  the  power  of  aliena- 
tion it  still  preserved  the  characteristics  and  essential  features 
of  the  ancient  ceremony,  and  unless  the  wife's  deed  was  made 
in  conformity  thereto  it  was  inoperative  to  any  extent  or  for 
any  purpose.''^  This  the  courts  have  uniformly  held;  and 
where  it  appears  that  there  has  been  a  failure  to  comply  v/ith 
the  statutory  requirements  the  defect  renders  the  deed  void 
and  without  effect.^^ 

Thus,  if  the  statute  requires  that  the  contents  of  the  deed 
ehall  be  explained  to  the  wife,  this  is  essential,  and  a  substan- 
tial compliance  must  be  shown;  and  if  the  certificate  fails  to 
show  statutory  conformity  by  neglecting  to  state  that  the  wife 
■was  made  acquainted  with  the  contents  of  the  deed,  the 
acknowledgment  will  be  fatally  defective.'^o  gQ^  ^qq^  the  fact 
that  her  acknowledgment  was  voluntary  and  without  compul- 
sion is  a  matter  of  substance  and  should  be  shown,  and  a  fail- 
ure so  to  state  renders  the  conveyance  inoperative;^^  and  the 
same  is  true  of  a  failure  to  state  that  she  does  not  wish  to 
retract  it,  when  this  is  made  a  necessary  averment  by  stat- 
ute.62  If  a  private  examination  is  required  by  statute  a 
recital  of  the  same  becomes  one  of  the  essential  features  of 
the  certificate,  to  omit  which  is  to  render  the  whole  certificate 
valueless  ;^^  and  generally  any  omission  of  any  specially-pre- 

V.  Button,  39  111.  91;  Pardun  v.  Silliman  v.  Cummins,  13  Ohio  116; 
Dobesberger,  3  Ind.  389;  Bernard  Moorman  v.  Board,  11  Bush  (Ky.) 
V.  Elder,  50  Miss.  336.  135;     Hariston    v.    Randolph,     12 


58  Lane  v.  Dolick,  6  McLean  200 
Davis  V.  Bartholomew,  3  Ind.  485 
Stone  V.  Montgomery,  35  Miss.  83 
Delassus   v.    Boston,    19    Mo.   425 


Leigh  (Va.)  445. 

ei  Louden  v.  Blythe,  27  Pa.  St. 
22;  Pratt  v.  Battels,  28  Vt.  685; 
Blackburn  v.  Pennington,  8  B.  Mon. 


Russell  V.  Rumsey,  35  111.  362.  217;  Bartlett  v.  Fleming,  3  W.  Va. 

53  Martin  v.  Dwelly,  6  Wend.  (N.  163. 

Y.)    9;    Butler  v.   Buckingham,    5  «2  Grove    v.    Zumbro,    14    Gratt. 

Day  (Conn.)  492;  Lane  v.  McKeen,  (Va.)  501;  Chauvin  v.  Wagner,  18 

15  Me.  304;  King  v.  Mosely,  5  Ala.  Mo.  531;  Bateman's  Petition,  11  R. 

610;  Landers  v.  Bolton,  26  Cal.  408;  I.  585;   Landers  v.  Bolton,  26  Cal. 

Lindley  v.  Smith,  46  111.  523;  Wam-  408;  Linn  v.  Patton,  10  W.  Va.  187; 

sell  v.  Kern,  57  Mo.  478;  Grove  v.  Belcher  v.  Weaver,  46  Tex.  293. 

Zumbro,  14  Gratt.  (Va.)  501.  63  Stillwell    v.    Adams,    29    Ark. 

CO  Pease  v.  Barbers,  10  Cal.  463;  346;  Hartley  v.  Ferrell,  9  Fla.  374; 

O'Ferrall  v.  Simplot,  4  Iowa  381;  Jordan  v.  Corey,  2   Ind.   385;   Ed- 


r 


ACKNOWLEDGMENT.  01!) 

scribed  nMiuirciiicnt  dcstroyH  tlu'  ('ITcct  of  the  acknowlcd}:- 
■meut  and  also  of  tlie  conveyance  wiiicli  it  is  intended  to  prove. 

An  express  relinquishment  of  dower  is  reijuired  in  many 
states,  and  when  such  is  tlie  case  an  acknowledgement  without 
this  formalit.v  would  be  insullicicnt ;"*  and  the  same  is  true  of 
a  release  and  waiver  of  the  ri«;ht  of  homestead  when  rciiuirt-d 
by  statute. 

The  tendency  of  recent  legislation  has  been  to  abrogate 
most,  and  in  some  states  all,  of  the  many  special  features 
that  fonnerly  characterized  the  acknowledj^ments  of  married 
w'omen,  whether  in  conveyances  of  their  own  lands  or  when 
joining  in  the  husband's  conveyance.  Separate  examinations, 
as  a  rule,  are  no  longer  required;  nor  is  the  wife  compelled  to 
make  any  statements  relative  to  her  acknowledgment  diller- 
ent  from  those  required  of  other  persons.  A  special  renuncia- 
tion of  dower  is  in  some  cases  necessary,  but  this  is  almost  the 
only  one  of  the  old  features  that  has  been  retained,  and  gener- 
ally, where  by  statute  a  married  woman  is  given  the  same 
contractual  powers  as  though  she  were  sole,  her  acknowledg- 
ment is  not  distinguishable  from  that  of  her  husband. 

§  518.  Conveyances  of  the  homestead.  The  solicitude  of 
the  law  to  protect  the  family  has  developed  a  number  of  legal 
theories  and  lines  of  action  somewhat  at  variance  with  gen- 
erally received  doctrines,  when  the  subject-matter  of  a  sale 
consists  of  land  used  and  occuj)ied  as  a  place  of  residence. 
In  this  class  of  conveyances  acknowledgment  is  frequently 
made  an  essential  part  of  the  deed  and  where  both  spouses  are 
living  it  must  be  duly  acknowledged  by  each.  As  a  rule  of 
conveyancing  the  acknowledgment  should  be  made  at  or 
before  delivery,  but  this  is  not  imperative  and  it  has  fre- 
quently been  held  that  the  certificate  of  such  acknowledgment 
may  be  added,  and  the  acknowledgment  itself  may  be  nuide, 
at  any  time  after  signing  and  becmne  effectual  by  relation 
from  the  date  of  signature,  provided  no  lights  of  third  parties 
have  intervened.*'^ 

It  would  seem,  however,  that  such  acknowledgment,  if  made 
subsequent  to  delivery,  must  be  made  by  husband  and  wife 

gerton  v.  Jones.  10  Minn.  427;  Rice  «<  Lindley  v.  Smith.  46  111.  524; 

V.  Peacoclv,  37  Tex.  392;  Garrett  v.  Thomas  v.  Meir,  18  Mo.  573. 

Moss.  22  111.  363;  Russ  v.  Wingate,  c.-.  Nelson  v.  Holly.  50  Ala.  3. 
30  Miss.  440. 


620 


ACKNOWLEDGMENT. 


during  the  lifetime  of  each  other  and  that  the  usual  rule 
which  permits  surviving  consorts  to  convey  to  a  purchaser  of 
the  fee  whatever  rights  they  might  have  does  not  apply.  The 
question  is  comparatively  a  new  one  and  can  hardly  be  said 
to  be  settled,  but  so  far  as  it  has  been  passed  upon  the  result 
is  adverse  to  the  validity  of  such  a  conveyance.*'^  Hence, 
where  a  deed  of  the  homestead  is  made  by  husband  and  wife, 
notwithstanding  it  may  have  been  duly  signed  by  both,  yet  if 
the  wife  fail  to  acknowledge  as  provided  by  statute,  the  deed 
will  be  without  legal  effect,  and  in  case  of  the  death  of  the 
husband  no  subsequent  acknowledgment  by  the  wife  will,  it 
seems,  be  effectual  as  against  the  heirs  at  law.^^  That  such  a 
course  is  to  the  last  degree  inequitable,  in  that  it  involves  pay- 
ment to  the  ancestor  for  lands  which,  notwithstanding,  pass 
to  the  heirs,  is  admitted,  but  if  the  deed,  unacknowledged  by 
the  wife  at  the  moment  of  the  ancestor's  death  was  void,  no 
other  conclusion  seems  admissible.^^ 


66  The  only  case  known  to  the 
writer  is  that  of  Richardson  v. 
Iron  Co.  90  Ala.  266,  which  sus- 
tains the  doctrine  of  the  text. 

67  See  Crim  v.  Nelms,  78  Ala.  604. 

68  So  held  in  Richardson  v.  Iron 
Co.  90  Ala.  266;  the  court  further 
says:  Upon  his  death  his  perfect 
title  passed  instantly  into  his  heirs, 
the  plaintiffs  in  this  suit.  With 
the  title  thus  lodged  in  Bond's  chil- 
dren his  widow  had  no  connection. 
In  the  lands  she  had  no  interest 
except  in  recognition  of  the  title  of 
the  heirs.  No  estate  then  existed 
out  of  the  heirs  which  she  could 
convey,  except  by  way  of  release  to 
the  heirs  themselves.  It  would  be 
an  anomaly,  indeed,  to  hold,  under 
this  state  of  law  and  fact,  that 
the  widow,  thus  without  alienable 
interest  of  any  kind  or  to  any  ex- 
tent in  the  land,  could,  by  the  mere 
acknowledgment  of  a  deed  which 
was  essentially  a  nullity  when  the 
heirs  took  a  perfect  title,  defeat 
their  rights,  and  in  legal  effect 
convey  their  lands  into  third  per- 


sons. We  do  not  think  it  can  be 
done.  We  apprehend  that  the  power 
to  give  vitality  to  such  a  void 
conveyance  by  after  acknowledg- 
ment ceases  whenever  the  estate, 
assuming  the  invalidity  of  the 
deed,  has  passed  into  third  persons, 
or  rights  of  third  persons  have  at- 
tached to  it.  We  cannot  conceive 
that  it  can  be  material  whether 
these  third  persons  are  heirs,  dev- 
isees, purchasers  or  creditors,  or 
whether  their  estates  or  rights 
have  accrued  by  descent,  devise, 
sale  or  judgment  liens.  The  con- 
clusion, we  think,  is  enforced  by 
a  consideration  of  two  clearly  es- 
tablished propositions  of  law:  first, 
a  deed  cannot  be  delivered  after 
the  death  of  the  grantor;  second, 
that  the  mere  fact  that  a  deed  of 
the  homestead,  void  for  the  lack 
of  the  wife's  privy  acknowledg- 
ment, is  given  into  the  possession 
of  the  nominal  grantee  is  only  a 
conditional  delivery,  and  a  condi- 
tional delivery,  unless  it  be  in  es- 
crow, is  in  legal  contemplation  no 


ACKNOWLEDGMENT. 


621 


§  519.  Authentication  by  officer.  A  cei-tilicate  should  bo 
made  under  llu-  hand  of  the  ct'illfvin';  offUcr — that  is,  he  must 
Ki^n  it ;•■"''  tho  insfiiion  of  his  naint'  in  the  bodv  of  the  ceilili 
cate  is  not  enough;^"  and  an  unsij^ned  cei'tificate  is  void  even 
though  it  is  attested  by  the  oflicei-'K  seal.'^'  So,  too,  while  it 
has  been  held  that  a  seal  is  not  essential  to  a  valid  oHicial  act 
unless  recjuiied  by  express  statute/^  yet  if  the  statute  does  in 
fact  prescribe  this  requirement,  he  must  affix  the  same.'^^  ju 
some  states  a  deed  without  a  notarial  seal  to  the  notary's  cer- 
tificate of  acknowledgment  is  inadmissible  in  evidence.'^* 

§  520.  Clerical  errors — Surplusage — Omissions.  Courts  are 
ever  inclined  to  construe  clerical  errors  liberally;  and  it  is 
the  policy  of  the  law  to  uphold  certificates  whenever  sub- 
stance is  found,  and  not  to  suffer  conveyances,  or  jjroof  of 
them,  to  be  defeated  by  technical  or  unsubstantial  objectious.'^^ 
Surplusage  on  the  one  hand,"*^  or  mere  clerical  omissions  on 
the  other,'^^  will  not  usually  affect  the  validity  of  a  certificate, 


delivery  at  all.  From  these  postu- 
lates, it  results  that  the  deed  had 
never  been,  and  could  never  be, 
delivered,  and  nothing  that  the 
widow  could  do  could  in  any  way 
affect  the  title  of  the  heirs.  Ca- 
hall  V.  Citizens  Mut.  Bldg.  Asso.  61 
Ala.  246;  Jackson  v.  Leek,  12  Wend. 
(N.  Y.)  105;  Shoenberger  v.  Zook, 
34  Pa.  24;  Fisher  v.  Hall,  41  N.  Y. 
416;  Fay  v.  Richardson,  7  Pick. 
(Mass.)  91;  Woodbury  v.  Fisher, 
20  Ind.  387. 

00  Carlisle  v.  Carlisle,  78  Ala.  542. 

ToMarston  v.  Brashaw,  18  Mich. 
81. 

71  Clark  v.  Wilson,  127   111.  449. 

72  Harrison  v.  Simmons,  55  Ala. 
510;  Farman  v.  Buffam,  4  Cush. 
(Mass.)  260;  Thompson  v.  Morgan. 
6  Minn.  261;  Commissioner  v. 
Glass,  17  Ohio  542. 

73  Little  v.  Dodge,  32  Ark.  453; 
BuelJ  V.  Irwin,  24  Mich.  145;  Bul- 
lard  V.  Perry,  28  Tex.  347.  See 
Booth  V.  Clark,  12  111.  129. 


74  See  Meskimen  v.  Day,  35  Kan. 
46. 

'''<  Scharfenburg  v.  Bishop,  35 
Iowa  60;  Wells  v.  Atkinson,  24 
Minn.  161;  Tubbs  v.  Gatewood,  26 
Ark.  128;  Barnet  v.  Praskauer,  62 
Ala.  486. 

7«  Stewart  v.  Dutton,  39  111.  91, 
where  it  was  held  that,  when 
words  are  inserted  in  a  certificate 
of  acknowledgment  which  is  per- 
fect without  them,  such  redun- 
dancy does  not  vitiate  it.  Whit- 
ney v.  Arnold,  10  Cal.  531. 

77  As  where  the  word  "his"  was 
omitted  before  the  words  "free  and 
voluntary  act"  (Dickerson  v.  Davis, 
12  Iowa  353);  or  the  word  "ap- 
peared," which  should  have  fol- 
lowed "personally,"  etc.  (Scharf- 
enburg V.  Bishop,  35  Iowa  60)  ;  or 
the  word  "are"  before  "personally 
known,"  etc.  Hartshorn  v.  Dawson. 
79  111.  108.  So,  also,  where  the  cer- 
tificate omits  the  name  of  the 
grantor,  but  shows  that  the  party 


62^  ACKNOWLEDGMENT. 

provided  they  do  not  amount  to  matters  of  substance  wliieh 
cannot  be  supplied  from  the  context.  Nor  will  defective  gram- 
matical expressions,'^^  or  the  transposition  of  words— evi- 
dently the  result  of  inadvertence'^^ — be  permitted  to  defeat  the 
acknowledgment  or  impair  the  deed.  An  evident  omission 
from  the  certificate  may  be  supplied  by  correction  where  the 
omission  consists  of  obvious  words.***^ 

Yet  as  nothing  is  presumed  in  favor  of  an  official  certificate, 
which  must  state  all  the  facts  necessary  to  a  valid  official 
act,^i  an  omission  of  anything  that  gives  substance  to  the  cer- 
tificate will  be  fatal  to  its  validity.  Courts  have  no  authority 
to  presume  that  substantial  requirements  of  the  statute  have 
been  complied  with  any  further  than  the  certificate  affirma- 
tively shows.  Hence,  if  the  omission  is  material,  construction 
cannot  aid  it.^^ 

§  521.  Proof  of  official  character.  The  acknowledgment 
must  not  only  be  made  before  some  person  authorized  to  take 
the  same,  but  the  proof  of  his  official  character  should  in  some 
way  be  apparent  upon  the  certificate  or  some  other  paper 
thereto  annexed.  If  the  lands  conveyed  are  within  the  cer- 
tifying officer's  jurisdiction,  extraneous  evidence  of  his  author- 
ity is  not  ordinarily  required,  particularly  if  he  is  an  officer 
possessing  or  authorized  to  employ  a  seal,  and  the  same  has 
been  attached  to  his  certificate.  If  the  instrument  is  proved 
without  the  state,  a  certificate  of  magistracy  as  well  as  con- 
formity must  ordinarily  accompany  the  certificate,  although 

who  appeared  before  the  officer  was  and  see  Quinby  v.  Boyd,  8  Cal.  194, 

the  grantor,  this  has  been  held  suf-  so  Ralston  v.  Moore,  83  Ky.  571. 

ficient.    Magness  V.  Arnold,  31  Ark.  si  Wetmore  v.  Laird,  5  Biss.   (C. 

103.    None  of  said  omissions  were  Ct.)  160;  Hartshorn  v.  Dawson,  79 

matters  of  substance.  111.  108. 

78  As  "his"  for  "its"  (Frostburg  82  As  where  the  word  "known" 

Assoc.  V.  Brace,  51  Md.  508),  or  al-  vv'as  omitted,  it  was  held  that  the 

luding  to  a  "deed"  as  a  "mortgage."  omission  was  fatal.    Tully  v.  Davis, 

Ives  V.  Kimball,  1  Mich.  308.  30  111.  103.    An  acknowledgment  of 

■'■>  As  where  the  word  "husband"  a  deed  purporting  to  be  made  by 

was    written    for    "deed,"    in    the    Murray,  without  other  desig- 

clause   reading  "the   contents  and  nation  of  the   person  making  the 

meaningof  said  husband  were  fully  acknowledgment,  was  held  insuffi- 

explained  and  made  known  to  her."  cient  to  convey  the  title  of  the  land. 

Calumet  Co.  v.  Russell,  68  111.  426;  Hiss  v.  McCabe,  45  Md.  77. 


ACKNOWLEDGMENT.  6:^3 

this  is  a  matter  almost  wholly  statutory,  aud  the  statutes  of 
the  states  are  not  uuifoim  in  their  requirements. 

A  certilicate,  properly  drawn,  should  in  some  manner  dis- 
close the  oHicial  title  of  the  person  making  it;  aud  so  impor- 
tant does  this  ap])ear  that  the  statute,  in  almost  every  instance 
of  a  prescribed  form,  has  made  provision  for  the  insertion  of 
the  officer's  title  in  the  body  of  the  cei-tificate.  But  while 
ollicial  character  is  usually  shown  in  this  manner  it  may  be 
sufficiently  indicated  by  the  addition  of  the  title  of  office  to 
the  sijjrnature.*^^  So,  on  the  other  hand,  it  has  been  held  that 
the  omission  of  ollicial  designation  in  the  signature  is  imma- 
terial, provided  the  character  is  disclosed  in  the  body  of  the 
certificate.^^  This  would  be  particularly  true  where  a  cer- 
tilicate of  magistracy  accompanies  the  certificate.**^ 

While  the  certificate  must  in  some  manner  purport  to  have 
been  made  by  an  officer  authorized  by  law  to  take  acknowl- 
edgments and  proofs  of  deeds,  yet  it  is  not  necessary,  unless 
there  is  a  statutory  requirement  to  that  effect,  that  the  officer 
should  state  in  his  certificate  that  he  is  authorized  so  to  do,^^ 
the  certificate  itself  being  an  evidence  of  that  fact.^^ 

Even  when  proof  of  official  character  is  required,  where 
acknowledgments  are  taken  without  the  state  by  officers 
authorized  to  take  the  same,  the  rule  does  not  extend  to  com- 
missioners of  deeds  appointed  by  the  proper  authorities  of  the 
state  for  this  purpose,  and  no  proof  of  authority  is  required  in 
such  cases  beyond  the  ordinary  method  of  authentication.^^ 

Where  acknowledgments  are  taken  in  a  foreign  country 
before  an  officer  unknown  to  the  law  of  the  stalie  where  the 
land  is  situated,  proof  of  authority  and  official  character  must 
be  made  to  render  the  act  valid;  and  a  certificate  of  magis- 
tracy, and  in  proper  cases  of  conformity,  must  accompany  the 
certificate  of  acknowledgment.^^ 

The  same  rules  which  apply  to  the  description  and  designa- 
tion of  parties  apply  to  the  officers  making  the  certificate,  aud 

83  Russ  V.  Wingate,  30  Miss.  440.  292;     Thurman    v.     Cameron.     24 

8*Brown  V.  Farran,  3  Ohio  140;  Wend.     (N.    Y.)    87;    Harding    v. 

Colby  V.  McOmber,  71  Iowa  469.  Curtis,  45  111.  252. 

«5  Final  v.  Backus,  18  Mich.  218.  ss  Smith  v.  Van  Gilder,  26  Ark. 

86  Livingstone    v.    McDonald,    9  527. 

Ohio  168.  80  De  Segond  v.  Culver,  10  Ohio 

t<7  Thompson  v,  Morgan.  6  Minn.  188. 


624 


ACKNOWLEDGMENT. 


verbal  inaccuracies  or  manifest  clerical  errors  are  not  mate- 
rial where  the  substance  is  correct.^" 


00  Thus,  an  acknowledgment  be- 
fore "a"  clerk  of  the  county  court 
within  and  for  a  certain  county, 
held,  there  being  but  one  clerk  of 
that  court,  suflBcient  to  authorize 


the  presumption  that  the  acknowl- 
edgment was  taken  before  "the" 
clerk.  Walker  v.  Owens,  25  Mo. 
App.  587. 


CHAPTER  XXI. 


REGISTRATION. 


t  522.    General  principles.  §  531. 

523.  Effect  of  registration. 

524.  What  instruments  must  be  532. 

recorded. 

525.  Equities   and    equitable    in-  533. 

terests. 

526.  Forged  instruments.  534. 

527.  Governmental   conveyances.  535. 

528.  Prerequisites     of     registra-  536. 

tion.  537. 

529.  Registration  as  affected  by  538. 

defective  execution.  539. 

530.  Effect  of  imperfect  descrip-  540, 

tion. 


Failure  to  record  by  record- 
ing officer. 

Effect  of  erroneous  regis- 
tration. 

Instruments  recorded  in 
wrong  book. 

Index  entries. 

Failure  to  index. 

Deed  withdrawn  after  filing. 

Priority. 

Destruction  of  record. 

Unrecorded  instruments. 

Continued — As  between  the 
parties. 


§  522.  General  principles.  Ref^istration  has  been  held  to 
be  a  substitute  for  livery  of  seizin,  and  to  give  to  the  convey- 
ance the  notoriety  intended  to  be  effected  by  that  ancient  cere- 
mony. In  all  its  essential  features,  however,  the  system  of 
registration  practiced  in  the  United  States  is  original  and 
peculiar  to  the  country  of  its  inception  and  development.  It  is 
entirely  unknown  to  the  common  law,  and  in  all  respects  a 
creation  of  the  statute.  It  is  thought  to  have  been  derived 
from  the  English  statute  of  enrollments,  which  was  enacted 
to  counteract  the  evil  effects  resulting  from  the  practice  of 
secret  conveyances  under  the  statute  of  uses.^  The  enrolling 
of  a  deed  did  not,  however,  make  it  a  record,  but  only  a 
memorial.  The  American  system  of  registration  not  only 
serves  as  a  means  of  preservation  of  the  muniments  and  evi- 

1  This  statute  provided  that  every  the  enrollment  of  one  class  of 
bargain  and  sale  of  an  inheritance  deeds,  to-wit:  those  of  bargain  and 
or  freehold  should  be  by  deed  in-    sale,  and  as  it  did  not  affect  other 

kinds  of  deeds  its  object  was  soon 
evaded  by  the  employment  of  other 
methods  of  transfer.  The  convey- 
ance by  lease  and  release,  which 
required  no  enrollment,  was  for 
many  years  the  principal  form  em- 
ployed. 


dented  and  enrolled  within  six 
lunar  months  from  its  date,  either 
in  one  of  the  courts  of  Westmin- 
ster, or  before  the  justices  and 
clerk  of  the  peace  in  the  county 
where  the  lands  were  situate.  This 
statute,  however,  only  provided  for 


40 


625 


G2(i  REGISTRATION. 

dences  of  title,  whereby  the  instrument,  as  under  the  Englisli 
statute,  shall  be  "kept  in  memory,"  but  gives  to  them,  when 
properly  executed,  certified  and  transcribed  in  conformity  to 
law,  the  dignity  and  effect  of  public  records;  and  to  the  sys- 
tem much  of  the  permanency  and  stability  of  our  land  titles  is 
attributable. 

§  523.  Effect  of  registration.  The  operation  and  effect  of 
registration  is  primarily  a  matter  of  statutory  regulation,  and 
in  all  of  the  states  enactments  defining  and  declaring  the 
effect  of  a  properly-recorded  instrument  are  in  force.  In  gen- 
eral such  enactments  provide  that  every  instrument  executed 
and  certified  in  the  manner  prescribed  by  statute  shall,  from 
the  time  of  filing  the  same  for  record,^  take  effect  as  against 
creditors  and  subsequent  purchasers  without  notice,  and  in 
some  instances  are  declared  to  impart  notice,  to  all  persons 
interested,  of  the  contents  thereof.  So,  too,  it  was  formerly 
held  to  be  the  rule,  derived  from  a  construction  of  such  stat- 
utes, that  every  deed  properly  certified  and  recorded  afforded 
constructive  notice  to  the  world;  but  this  rule,  according  to 
later  decisions,  has  been  held  to  be  too  broad  an  enunciation 
of  the  doctrine.  Such  record  is  now  generally  held  to  be  con- 
structive notice  only  to  those  who  are  bound  to  search  for  it 
— as  subsequent  purchasers  or  mortgagees,  and  perhaps  all 
others  who  deal  with  or  on  the  credit  of  the  title  in  the  line 
of  which  the  recorded  deed  belongs.^  But  strangers  to  the 
title — persons  claiming  adversely — are  in  no  way  affected  by 
such  record.^ 

§  524.  What  instruments  must  be  recorded.  As  registra- 
tion is  solely  a  matter  of  statutory  creation,  the  rules  and 
analogies  of  the  common  law  have  little  application;  yet  as 
the  statute,  in  most  instances  at  least,  has  made  no  specific 
designation  of  the  class  of  titles  or  estates  to  be  thus  pro- 
tected and  preserved,  recourse  must  be  had  to  cases  of  judicial 
interpretation.  The  substance  of  the  usual  provision  is  that 
deeds,  mortgages,  powers  of  attorneys  and  other  instruments 
relating  to  or  affecting  the  title  to  real   property    shall    be 

2  Johnson  v,  Borden,  40  Vt.  567;  *  Maul  v.  Rider,  59  Fa.  St.  167; 
Kessler  v.  State,  24  Ind.  213;  Leslie  Corbin  v.  Sullivan,  47  Ind.  356;  Gil- 
V.  Hinson,  83  Ala.   266.  lett  v.  Gaffney,  3  Colo.  351;  Carbine 

3  Jenkins  v.  Adams,  71  Tex.  1.  v.  Pringle,  90  111.  302. 


REGISTRATION.  627 

recorded  in  the  county  in  wliich  such  property  is  situated,  or, 
if  such  county  is  not  orpmized,  then  in  the  county  to  which 
such  unorganized  county  is  attached  for  judicial  purposes.^ 

Upon  general  principles  this  would  include  every  right, 
claim  or  interest  in  land;  and  indeed  such  is  its  effect  and 
import  whenever  the  nght,  claim  or  interest  is  of  a  per- 
manent character.  Thus,  a  deed  granting  a  permanent  right 
of  way  is  within  the  recording  acts,  and  unless  recorded  can- 
not operate  against  subsetjuent  purchasers  for  value  and  with- 
out notice.^  A  bond  for  conveyance  is  subject  to  the  same 
rule,'^  and  the  assignment  of  such  a  bond  has  been  held  to 
come  clearly  within  the  provisions  of  the  registration  art; 
and  unless  so  recorded  such  assignment  will  not  take  effect  as 
against  a  subsequent  ho7ia  fide  purchaser  or  incumbrancer 
without  notice.^ 

It  would  seem,  however,  that  the  statute  requiring  deeds  or 
other  evidences  of  conveyance  to  be  recorded  does  not  apply 
to  leases  for  years,^  nor  to  mortgages  of  such  leasehold 
estates.i'^ 

§  525.  Equities  and  equitable  interests.  Notwithstanding 
that  the  earlier  cases  announced  a  different  rule,  the  general 
doctrine  now  is  that  equitable  estates  and  interests  as  well  as 
legal  are  embraced  within  the  intent  and  operation  of  the 
recording  acts,^^  and  where  an  instrument  is  properly  record- 
able, and  due  regard  has  been  had  to  all  the  preliminaries  of 
execution,  acknowledgment,  etc.,  the  record  of  the  same 
becomes  constructive  notice  not  only  that  the  instrument 
exists,  but  of  its  contents,  and  of  whatever  rights,  interests  or 
estates,  either  legal  or  equitable,  that  may  be  created  by  or 
arise  from  its  provisions. 

5  A  deed   recorded   in  a  county  493;  Worley  v.  State,  7  Lea(Tenii.) 

where    at    the    time    the    land    is  382. 

shown  by  a  legal  establishment  of  ^  Welles    v.    Baldwin,    28    Minn, 

county  lines   to  be,  is  sufficiently  408;  Dobyns  v.  Waring,  82  Va.  159. 

recorded  notwithstanding  a  change  ^  McFarran  v.  Knox,  5  Cal.  217. 

which  excludes  the  land  from  that  ^  Hodge  v.  Giesse,  43  N.  J.  Eq. 

county.     If,   however,   the   county  342. 

lines  have  not  been  established  at  lo  Hutchinson  v.  Bramhall,  42  N. 

the  time  of  the  record,  the  person  J.  Eq.  372. 

recording  acts  at  his  peril.    Jones  "  Tarbell  v.  West,  86  N.  Y.  287; 

v.  Powers.  65  Tex.  207.  Wilder    v.    Brooks.    10    Minn.    50; 

G  Prescott    V.    Beyer,    34    Minn.  Digman  v.  McCallum,  47  Mo.  372; 


628  REGISTRATION. 

Thus,  the  registry  of  a  mortgage  is  of  itself  notice  in  law 
to  all  subsequent  purchasers  of  the  lien  created  thereby.  So, 
also,  the  record  of  a  trust  deed  affords  notice  to  every  one  of 
the  existence  and  tenns  of  the  trust;  and  it  seems  that  the 
registry  of  a  mere  equitable  mortgage  or  incumbrance  is 
notice  to  a  subsequent  purchaser  of  the  legal  estate  so  as  to 
entitle  such  mortgage  to  a  preference,^ ^ 

§  526.  Forged  instruments.  The  provisions  of  the  record- 
ing acts  have  no  application  to  forged  deeds  and  other  instru- 
ments, for  they  have  no  effect  upon  the  title  and  are  not  enti- 
tled to  record.  However  innocently  one  may  have  purchased 
under  such  recorded  deed,  he  has  no  rights  against  the  true 
owner  of  the  land.^^ 

§  527.  Governmental  conveyances.  Provision  is  generally 
made  in  those  states  which  contain  lands  belonging  to  the  fed- 
eral government  for  the  regis^tration  of  duplicate  receipts  and 
other  evidences  of  purchase,  as  well  as  for  the  deeds  and  pat- 
ents which  may  follow;  yet  the  registration  laws  of  the  state 
do  not  apply  to  the  disposition  of  lands  belonging  to  the 
United  States,  but  the  rights  of  parties  will  be  governed  by 
the  regulations  established  by  congress  until  the  title  has 
finally  passed  from  the  government.^ ^ 

§  528.  Prerequisites  of  registration.  The  whole  system  of 
registration  of  conveyances,  as  well  as  the  effect  thereof,  is 
purely  statutory,  and  in  its  practical  operation  somewhat  in 
derogation  of  common-law  principles.  By  the  statute  certain 
formalities  are  frequently  required,  which  in  the  main  relate 
to  execution  and  the  means  of  proof;  and  the  due  observance 
of  these  formalities  is  usually  made  essential  to  the  giving  of 
constructive  notice,  and  in  some  instances  to  the  right  to 

Alderson  v.  Ames,  6  Md.  52;  Wor-  tees,  erased  his  name  and  the  mid- 
ley  v.  State,  7  Lea  (Tenn.)  382.  die   initial   in  the  other  grantee's 

12  Parkist  v.  Alexander,  1  Johns,  name  from  the  deed,  and  put  the 
Ch.  (N.  Y.)  394.  deed    so   altered   and   changed   on 

13  Where  a  person  took  a  deed  to  record,  thereby  showing  a  convey- 
one  of  his  sons,  and  also  to  a  ance  to  himself,  the  grandfather, 
grandson  of  the  same  name  as  his  held,  that  the  erasure  was  a  forg- 
own  except  the  addition  of  a  mid-  ery,  and  as  such  did  not  affect  the 
die  initial  letter,  the  grantees  being  title  of  the  real  grantees.  Pry  v. 
minors,  and   the  grandfather,  the  Pry,  109  111.  466. 

custodian  of  such  deed,  after  the        i*  David  v.  Rickabaugh,  32  Iowa 
death  of  his  son,  one  of  the  gran-    540;  Betser  v.  Rankin,  77  111.  289. 


REGISTRATION.  629 

record.  Where  a  statute  provides  that,  as  a  prerequisite  to 
registra'tion,  a  deed  shall  be  acknowledged  before  some  duly- 
authorized  oflficer,  tlie  mere  recording  of  a  deed  not  acknowl- 
edged in  accordance  with  the  statute  does  not  impart  con- 
structive notice  to  any  one  of  the  contents  of  such  deed.^'^ 
So,  also,  it  has  been  held  that  a  deed  is  not  entitled  to  be 
recorded  where  it  does  not  appear,  except  inferentially  from 
the  seal,  of  what  city,  county  or  state  the  notary  was  who 
attempted  to  take  the  acknowledgment.^® 

§  529.  Registration  as  affected  by  defective  execution.  The 
rule  is  general  that  a  defectively  acknowledged  deed  or  a  deed 
without  acknowledgment,  although  recorded,  will  not  impart 
constructive  notice  to  subsequent  purchasers  for  a  valuable 
consideration  ;i^  and  it  has  further  been  held  that  if  it  is  so 
recorded  without  acknowledgment,  the  record  is  not  admissi- 
ble as  evidence  of  title  in  an  action  to  recover  the  lands  so 
conveyed.is  The  rule  is  more  strictly  applied  in  some  states 
than  in  others;  and  it  has  been  held  that  even  where  instru- 
ments purport  to  have  been  acknowledged,  if  such  acknowl- 
edgments were  defectively  made,  or  if  the  certificates  thereof 
fail  to  embody  all  the  statutory  requirements  in  a  substantial 
manner,  the  effect  of  registration  is  practically  the  same  as 
though  no  acknowledgment  had  been  made.^^ 

In  some  states  where  the  deed  is  so  defectively  executed  as 
to  pass  no  estate,  it  is  by  law  excluded  from  registration ;  but 
generally  this  effect  follows  only  from  non-compliance  with 
the  statute  in  respect  to  acknowledgment.^^ 

15  Bishop    V.    Schneider,    46    Mo.  it  Cox  v.  Wyat,  26  W.  Va.  807; 

472;    Galway   v.    Malchon,   7    Neb.  Woolfolk  v.  Graniteville  Mfg.   Co. 

285;  Westerman  v.  Foster,  57  Ind.  22  S.  C.  332;   Bishop  v.  Schneider, 

408;    Pope  v.  Henry,   24  Vt.   560;  46  Mo.  472;  Galway  v.  Malchon,  7 

McMinn  v.  O'Connor,  27  Cal.  238;  Neb.  285;    Herndon  v.   Kimball,  7 

Holliday  v.  Cromwell,  26  Tex.  188;  Ga.    432;    Carter   v.    Champion,    8 

Reynolds   v.    Kingsbury,    15    Iowa  Conn.  549. 

238.  I''  Westerman  v.  Foster,  57  Ind. 

1'-  Nor  does  the  index  of  such  a  408. 

deed  charge  with  constructive  no-  lo  See  Greenwood  v.  Jenswold.  69 

tice  of  its  contents.    Greenwood  v.  Iowa  53;    Cox  v.  Wyat,  26  W.  Va. 

Jenswold,    69    Iowa    53;    and    see  807. 

Schults   V.   Moore,    1   McLean    (C.  20  See,    generally,     Burnham    v. 

Ct.)   520;   McMinn  v.  O'Connor,  27  Chandler,   15   Tex.  441;    Galpin   v. 

Cal.  238.  Abbott,    6    Mich.    17;    Pringle    v. 


630  REGISTRATION.  ' 

The  rule  as  stated,  while  undoubtedly  that  which  prevails 
in  a  majority  of  the  states  where  it  is  expressed  and  declared 
by  statute,  has  in  several  instances  been  denied,  while  the 
statutes  of  some  of  the  states  have  adopted  a  different  policy 
with  regard  to  the  effect  of  registration.  By  the  language 
of  these  statutes  everything  is  comprehended  that  may  relate 
to  or  affect  title,  and  every  such  instrument  may  be  recorded 
without  any  qualification  as  to  whether  they  be  sufficient  in 
law  to  effectuate  the  object  purported  on  their  face.-^  While 
the  states  holding  this  doctrine  are  in  the  minority,  it  would 
still  seem  that  they  are  supported  by  the  better  reason.  The 
primary  object  of  registration  is,  or  should  be,  to  make  the 
records  the  great  depositories  of  land  titles  of  the  states;  and 
for  that  reason  every  instrument  in  writing  relating  to  land 
should  have  the  privilege  of  record,  and,  when  once  recorded, 
should  impart  notice  to  the  world  of  everything  therein  stated 
as  well  as  of  everything  that  may  be  necessarily  implied  from 
the  words  of  such  recorded  instruments.  Acknowledgment 
is  nowhere  held  essential  to  the  validity  of  deed  as  between 
the  parties;  and  as  a  rule  the  statute  relating  to  acknowledg- 
ments only  goes  to  the  extent  of  providing  that,  if  a  deed  be 
acknowledged  and  certified  in  the  manner  prescribed,  the 
original  may  be  read  in  evidence  without  other  proof  of  its 
execution.  To  say,  therefore,  that  the  record  of  an  unacknowl- 
edged deed  is  a  nullity  seems  a  perversion  of  the  plain  intent 
of  the  law;  yet  the  fact  remains  that  this  anomaly  exists  in 
many'  of  the  states,  either  by  express  enactment  or  judicial 
construction. 

A  deed,  though  not  entitled  to  record,  but  which  has  been 
recorded,  while  it  does  not  operate  as  constructive  notice,  may 
operate  as  actual  notice;--  and  a  person  searching  the  records 
may  be  bound  by  the  infonnation  there  obtained  when  he  has 
actually  inspected  an  instrument  purporting  to  affect  the  title 
under  investigation. 

§  530.  Effect  of  imperfect  description.  To  charge  a  pur- 
chaser with  notice  as  to  any  particular  tract  of  land,  such 

Dunn,  37  Wis.  449;  Monroe  v.  Ham-  562;  Brown  v.  Simpson,  4  Kan.  76. 

ilton,  60  Ala.  227;  Parret  V.  Shaub-  22  Musgrove    v.    Bonser,    5    Ore. 

hut,  5  Minn.  323;  Reed  v.  Coale,  4  313;    Bass  v.  Estill,  50  Miss.  300; 

Ind.  283.  Hastings  v.  Cutler,  24  N.  H.  481. 
21  See  Morrison  v.  Brown,  83  111. 


REGISTRATION.  631 

land  should  be  so  described  as  to  render  its  location  definite 
and  (certain.  The  Kt'iit'i'J^l  subject  of  description  has  been  so 
thoroughly  discussed  in  other  parts  of  this  work  that  no 
attempt  at  recapitulation  will  here  be  made;  yet,  as  an  exam- 
ple of  what  is  meant,  it  may  be  said  that  a  conveyance  of 
lands  without  description  of  boundary  or  location,  but 
merely  as  "all  other  lands  owned  by  the  vendor  in  the  state 
of  Louisiana,"  while  it  mi<»ht  operate  as  between  the  parties, 
is  not  notice  as  to  any  particular  tract  conveyed.-'^  The  eifect 
of  registration  as  notice  is  generally  held  to  be  the  tenor  and 
effect  of  the  instrument  as  it  appears  upon  the  record i^*  and 
•while  the  authorities  are  divided  in  regard  to  errors  which 
may  intervene  in  transcribing,  if  the  instrument  is  correctly 
spread  upon  the  records  the  only  notice  it  affords  is  of  its  con- 
tents.25 

§  531.  Failure  to  record  by  recording  officer.  As  to  the 
effect  of  a  failure  by  the  recording  oflicer  to  properly  record 
or  transcribe  an  instrument  left  with  him  for  that  purpose, 
the  authorities  are  not  agreed.  It  is  held  in  some  states  that 
a  purchaser  of  land  who  deposits  his  deed  for  record  dis- 
charges thereby  his  whole  duty  to  the  public.  If,  through  the 
fault  of  the  register,  the  deed  is  not  recorded,  such  failure 
will  not  prejudice  the  purchaser,  even  in  favor  of  a  subse- 
quent purchaser  without  notice,  unless  the  first  purchaser, 
after  knowledge  of  the  defect  in  the  record,  is  guilty  of  laches 
in  failing  to  give  notice  of  his  title.-*' 

§  532.  Effect  of  erroneous  registration.  There  is  a  marked 
difference  of  opinion  among  courts  and  jurists  with  regard  to 
the  effect  of  an  error  in  transcription  after  an  instrument  has 
been  properly  lodged  in  the  office  of  registration.  Upon  the 
one  hand  it  is  held  that  the  records  are  constructive  notice 
only  of  that  which  they  actually  disclose,  and  that  purchasers 
have  a  right  to  rely  upon  the  records  as  indicating  the  true 
state  of  the  title;  and  that  where  a  purchaser,  having  duly 
examined  the  records,  purchases  with  the  knowledge  thereby 

2s  Green  v.  Witherspoon.  37  La.  Barrows  v.  Baughman,  9  Mich.  213. 

Ann.  751.  -'''  Terrell  v.  Andrew  County,  44 

24  Shepherd  v.  Burkhalter.  13  Ga.  Mo.  309. 

443;    Stevens  v.  Hampton,  46   Mo.  -'o  Lee  v.   Bermingham,   30   Kan. 

404;    Miller  v.   Bradford,  12   Iowa  312;    and   see    Perkins   v.    Strong, 

14;  Pringle  v.  Dunn.  37  Wis.  465;  22  Neb.  725. 


632  REGISTRATION. 

obtained,  he  will  be  unaffected  by  any  error  or  discrepancy 
that  may  have  intervened  through  the  acts  of  the  recording 
oflScer  in  transcribing  the  instruments.-^  The  theory  of  this 
class  of  cases  proceeds  largely  upon  the  old  and  well-settled 
law  of  notice,  and  that  the  essential  character  of  the  registry 
is  to  quiet  and  confirm  titles,  the  statutes  creating  the  same 
being  intended  for  statutes  of  repose.  Under  them  a  pur- 
chaser is  under  no  obligation  to  ascertain  that  the  instru- 
ments have  been  correctly  copied,  and  the  burden  of  seeing 
that  their  deeds  have  been  properly  recorded  devolves  on  the 
original  grantees.^s  It  is  contended  in  support  of  this  doc- 
trine that  the  statute  providing  that  a  deed  shall  impart 
notice  from  the  time  it  is  filed  for  record  applies  only  where 
its  contents  have  been  correctly  spread  upon  the  records  ;2^ 
that  it  was  never  intended  to  impose  upon  the  purchaser  the 
burden  of  entering  into  a  long  and  laborious  search  to  find 
out  whether  the  recorder  had  faithfully  performed  his  duty.^o 
It  must  be  admitted  that  there  are  strong  grounds  upon 
which  to  maintain  this  doctrine;  and  these  grounds  are  not 
only  fortified  and  supported  by  the  special  reasons  given,  but 
by  the  general  principles  of  law  as  well.  The  uncertainty  that 
must  attend  sales  of  real  property  if  the  purchaser  cannot 
rely  upon  the  records,  but  must  first  trace  up  the  original  deed 
to  see  that  it  is  correctly  recorded,  is  manifest,  while  upon 
general  principles  the  obligation  of  giving  notice  should  rest 
upon  the  party  holding  the  title,  and  who,  if  he  fails  in  this 
duty,  should  suffer  the  consequences,  and  not  an  innocent 
party. 

The  opposite  view  is  taken  by  a  large  and  apparently  well- 
considered  class  of  cases,  in  which  it  is  held  that  a  grantee 
who  files  his  deed  for  record  with  the  proper  officer  has  dis- 
charged the  only  duty  which  the  law  imposes  upon  him,  and 
that  from  thenceforth  his  deed  imparts  notice  and  will  prevail, 

27  Gilchrist  V.  Gough,  63  Ind.  576;  Potter  v.  Dooley,  55  Vt.  621;  Speer 

Miller   v.    Bradford,    12    Iowa   14;  v.  Evans,  47  Pa.  St.  141. 

Hill  V.  McNichol,  76  Me.  314;  Prin-  28  Mutual  Life  Ins.  Co.  v.  Dake, 

gle  V.  Dunn,  37  Wis.  449  ;  Thorp  v.  87  N.  Y.  263. 

Merrill,   21   Minn.    336;    Chamber-  29  Terrell  v.  Andrew  County,  44 

lain  V.  Bell,  7  Cal.  292;  Terrell  v.  Mo.  309. 

Andrew  Co.    44    Mo.   309;    Mutual  30  Terrell  v.  Andrew  County,  44 

Life  Ins.  Co.  v.  Dake,  87  N.  Y.  257;  Mo.  309. 
Bernard  v.  Campau,  29  Mich.  162; 


REGISTRATION.  633 

liot\vltlistaii(lin<;  its  contents  have  nut  been  coricctly  tian- 
scribt'd.  Should  a  Hub«i'(|uent  purcliasei-  be  misled  thereby  to 
his  injury,  his  only  remedy  is  against  the  recording  olTicer  who 
has  thus  neglected  his  duty.'"  It  is  contended  that  the  state, 
having  provided  the  place  and  means  of  registration,  and 
invited  a  grantee  to  deposit  his  deed  for  record,  must  after- 
ward see  to  it  that  the  work  is  properly  performed;  that  the 
grantee  is  not  a  guarantor  of  compliance  by  the  recording 
officer  with  the  law  as  to  recording,  and  that  if  any  one  suf- 
fers from  the  negligence  of  the  ofticer  he  must  seek  redress 
from  the  officer.^- 

§  533.  Instruments  recorded  in  wrong  book.  The  methods 
of  registration  are  very  similar  throughout  the  United  States, 
and  from  motives  of  convenience  it  is  customary  in  most 
states  to  employ  two  sets  of  books:  one  designed  for  deeds  or 
all  classes  of  absolute  conveyances,  and  one  for  mortgages  or 
conveyances  subject  to  defeasance.  Where  such  practice  pre- 
vails, and  where  the  law  directs  that  deeds  and  conveyances 
of  absolute  interests  shall  be  recorded  in  the  "books  of  deeds," 
it  would  seem  that  the  record  of  a  deed  in  a  book  of  mortgages 
is  wholly  inoperative  so  far  as  respects  its  capacity*  to  furnish 
constructive  notice,^^  and  that  a  mortgage  recorded  in  a  book 
of  ''deeds"  is  subject  to  the  same  rule.^^ 

§  534.  Index  entries.  \Yhile  the  index  is  not,  properly 
speaking,  a  part  of  the  records,  index  entries  are,  however, 
frequently  held  sulficient  to  charge  notice  ;^^  and  that,  too, 
even  though  no  description  of  the  property  is  entered,  but 
simply  the  words  "see  record,"^^  or  "certain  lots  of  land;"^'^ 
for  if  enough  is  shown,  it  is  claimed,  to  induce  imiuiry  and  put 
a  prudent  man  on  guard,  notice  is  thereby  alforded.    In  some 

31  Oats  V.  Wall,  28  Ark.  244;  202;  Grinstone  v.  Carter,  3  Paige 
Merrick  v.  Wallace.  19  111.  486;  Lee    (N.  Y.)  421. 

V.  Bermingham,  30  Kan.  312;  Mims  34  Fisher  v.  Tunnard,  25  La.  Ann. 

V.  Mims,   35  Ala.  23;    Mangold   v.  179;   James  v.  Morey,  2  Cow.    (N. 

Barlow,  61  Miss.  593;  Brooke's  Ap-  Y.)  246;  Calder  v.  Chapman,  52  Pa. 

peal,    64   Pa.    St.    127;    Nichols   v.  St.  359. 

Reynolds.  1  R.  I.  30;  Throckmorton  3r,  Disque  v.  Wright,  49  Iowa  541; 

V.  Price,  28  Tex.  605.  Sinclair  v.  Slawson,  44  Mich.  123; 

32  Mangold   v.    Barlow,   61   Miss.  Swan  v.  Vogel,  31  La.  Ann.  38. 
597.  30  White    v.    Hampton.    13    Iowa 

83  Leech's  Appeal,  44  Pa.  St.  140;    260. 
Colomer  v.   Morgan,   13   La.   Ann.        37  Bostwick  v.   Powers,   12   Iowa 

456. 


634  REGISTRATION. 

states  the  index  would  seem  to  be  an  essential  part  of  the 
records,  and,  in  such  states,  it  has  been  held  that  a  deed,  in 
order  to  furnish  constructive  notice,  must  not  only  be  tran- 
scribed upon  the  records,  but  also  be  properly  indexed.^^ 

§  535.  Failure  to  index.  In  the  strict  and  proper  accepta- 
tion of  the  term  a  deed  is  properly  recorded  when  it  has  been 
spread  upon  the  public  records.  An  index  is  at  best  but  a 
convenient  method  providing  for  pointing  out  or  indicating 
where  the  record  may  be  found.  Its  office  is  to  facilitate 
search,  and  to  afford  a  convenient  aid  to  those  having  occasion 
to  examine  the  records.^''  Properly  speaking  it  forms  no  part 
of  the  records.^''  The  duty  of  keeping  proper  indices  usually 
devolves  on  the  recorder  by  virtue  of  the  statute,  and  they  are 
ordinarily  a  part  of  the  designated  books  of  his  office;  but 
even  while  it  may  be  the  duty  of  the  recorder  to  keep  a  proper 
index  of  his  books  of  registration,  so  that  one  searching  the 
records  may  easily  find  what  is  or  is  not  contained  therein, 
yet,  as  a  rule,  an  instrument  properly  tiled  and  copied  on  the 
records  is  recorded  within  the  meaning  of  the  law,  and 
imparts  notice  to  subsequent  i^urchasers,  notwithstanding  the 
failure  of  the  recording  officer  to  index  it.'*^ 

§  536.  Deed  withdrawn  after  filing.  The  rule  as  to  the 
time  when  a  deed  becomes  effective  as  notice  after  tiling  is 
not  altogether  uniform,  but  in  a  majority  of  the  states  a  deed 
imparts  nojtice  of  its  contents  from  the  time  the  same  is  tiled 
for  record.  But  where  after  a  deed  has  been  duly  filed,  and 
before  registration,  it  is  withdrawn  by  the  party  taking  a 
beneficial  interest  under  it,  a  complicated  question  is  raised  as 
to  its  effect.  It  was  held  in  one  case  that  during  the  time  the 
deed  was  away  from  the  office,  the  law  making  the  filing  of  a 
deed  for  record  notice  to  subsequent  purchasers  was  sus- 
pended, yet  that  a  statement  of  the  fact  of  filing  and  with- 
drawal was  sufficient  to  put  upon  inquiry  a  third  party  who 

38  Ritchie  V.  Griffith,  1  Wash.  429.  338.      A    different    rule    seems    to 

39  Green  v.  Garrington,  16  Ohio  prevail  in  Iowa.  See  Howe  v. 
St.  548.  Thayer,  49  Iowa  154,  and  in  Wash- 

40  Bishop  V.  Schneider,  46  Mo.  ington,  see  Ritchie  v.  Griffith,  1 
472;  Stockwell  v.  McHenry,  107  Pa.  Wash.  429. 

St.  237;  Chatham  v.  Bradford.  50  ^i  Bishop  v.  Schneider.  46  Mo. 
Ga.  327;   Curtis  v.  Lyman,  24  Vt.    472;  but  see  cases  last  cited. 


REGISTRATION.  G35 

proposed  to  purchaso  the  property.^-  lu  anolber  case,  where 
a  deed  was  withdrawn  before  actual  registration,  it  was  held 
that  the  noting  of  it  on  the  books  of  the  recorder  was  evidence 
of  the  tiling,  but  that  hy  its  withdrawal  its  priority  was  lost, 
and  that  it  would  only  take  effect  from  the  date  of  its  return 
to  the  registry.-*^ 

§  537.  Priority.  While  it  is  undoubtedly  true  that  an  un- 
recorded deed  will  pass  to  the  grantee  all  the  title  of  the 
grantor,  and  as  between  the  parties  is  etlectual  for  all  pur- 
poses, yet,  for  the  purposes  of  the  recording  acts,  and  in 
furtherance  of  the  peculiar  doctrine  of  constructive  notice 
which  foi-ms  one  of  their  chief  characteristics,  in  a  conveyance 
of  lands  the  absolute  title  may  be  said  to  rest  with  the  grantor 
and  his  heirs,  in  a  sort  of  abeyance,  to  vest  irrevocably  only 
upon  the  recording  of  the  deed;  and  it  will  vest  in  the  first 
grantee  in  condition  to  receive  the  grant  who  shall  place  his 
deed  upon  record.^^  In  effect,  therefore,  so  far  as  the  rights 
of  third  parties  are  concerned,  registration  is  a  necessary  inci- 
dent to  perfect  the  title  of  the  land  intended  to  be  conveyed.'*^ 

But  the  rule  of  law  which  allows  a  subsequent  recorded 
deed,  made  on  a  valuable  consideration,  to  take  precedence  of 
a  prior  unregistered  deed  only  applies  when  both  parties 
claim  under  the  same  grantor,^^  and  wher6  the  party  who 
seeks  the  protection  of  the  statute  has  acted  in  good  faith.^'^ 
One  who  has  notice  of  the  equities  of  prior  purchasers  before 
he  pays  the  purchase  price  of  land  cannot  claim  tlie  rights  of 
a  lo7ia  fide  purchaser;  and  so  a  conveyance,  though  duly 
recorded,  passes  no  title  whatever  when  taken  with  a  knowl- 
edge of  the  existence  of  an  unrecorded  deed,^^  qj.  ^t  best  the 
land  in  the  hands  of  such  purchaser  is  subject  -to  the  rights  of 
the  grantee  named  in  such  prior  deed.-*^ 

The   protection  of  the  recording  acts,   which  declare  an 

42Lawton  v.  Gordon,  37  Cal.  202.  239;   Hutchinson  v.  Harttman,  15 

In   this  case  a   deed   was   filed   in  Kan.  133. 

the  recorder's  office  for  record,  but  ■*■'  Respass  v.  Jones,  102  N.  C.  5. 

before  it  was  recorded  it  was  with-  <«  Rodgers  v.  Burchard,  34  Tex. 

drawn  by  the  purchaser,  and  after  441. 

some  time  returned  for  record.  *'  Musgrove  v.  Bonser,  5  Ore.  313. 

■«3  Hickman  v.   Perrin,   6  Coldw.  -is  Musgrove    v.    Bonser,    5    Ore. 

(Tenn.)  135.  313;  Keen  v.  Schnedler,  92  Mo.  516. 

•»*  Youngblood  v.  Vastine,  46  Mo.  ^^  As   where  a   purchaser  takes 


636  REGISTRATION. 

unrecorded  deed  void  as  against  a  subsequent  purchaser  in 
good  faitli  and  for  a  valuable  consideration  whose  deed  shall 
be  first  recorded,  is  not  confined  to  a  subsequent  purchaser 
immediately  from  the  same  grantor,  but  applies  to  one  who 
takes  from  him  through  mesne  conveyances;  and  they  protect 
him,  if  a  purchaser  in  good  faith  and  for  value,  although  the 
intermediate  grantees  were  chargeable  with  bad  faith  or  paid 
uothing.'^o  But  a  purchaser  from  one  who  bought  with  notice 
of  a  prior  unrecorded  deed  given  by  his  grantor  to  a  third  per- 
son has  constructive  notice  of  such  prior  deed,  if  it  be 
recorded  before  the  execution  of  his  conveyance;  and  he  is 
not  a  purchaser  in  good  faith,  although  the  deed  to  his 
grantors  may  have  been  recorded  before  the  record  of  such 
prior  deed.  The  prior  deed  in  such  a  case  will  take  prece- 
dence,^^ 

A  quitclaim  deed  received  in  good  faith  and  for  a  valuable 
consideration,  and  which  is  recorded  before  a  prior  deed  of 
bargain  and  sale,  will  generally  prevail  over  such  prior  deed.^^ 

§  538.  Destruction  of  record.  The  doctrine  of  constructive 
notice  has  been  productive  of  several  seeming  anomalies, 
principal  among  which  is  the  effect  to  be  given  to  records 
which,  having  once  been  properly  made,  are  subsequently 
destroyed.  The  current  of  authority  seems  to  hold  that  a 
grantee  discharges  every  legal  duty  when  he  files  his  deed  for 
record,  and  that  after  a  deed  has  been  duly  recorded  the 
partial  or  total  destruction  of  the  record  in  no  manner  affects 
the  constructive  notice  afforded  by  its  being  recorded.^^  The 
rule  must  sometimes  be  productive  of  hardship,  but  it  seems 
to  have  been  adopted  under  a  choice  of  difficulties. 

§  539.  Unrecorded  instruments.  Notwithstanding  the  posi- 
tive and  unqualified  statements  of  the  recording  acts,  intend- 
ing purchasers  are  still  held  in  equity  to  a  strict  exercise  of 
good  faith,  and  a  diligent  inquiry  as  to  all  matters  brought  to 
their  notice  which  may  affect  or  impair  the  title  of  the  prop- 

with  actual  knowledge  of  a  prior,  si  Mahoney  v.  Middleton,  41  Cal. 

adverse  but  unattested  conveyance  41. 

which  his  counsel  erroneously  told  ^2  Graff  v.  Middleton,  43  Cal.  341 ; 

him  was  invalid.     Gilbert  v.  Jess,  Marshall  v.  Roberts,  18  Minn.  405; 

31  Wis.  110.  Munson  v.  Ensor,  94  Mo.  504. 

so  Fallass  v.  Pierce,  30  Wis.  443;  •'''.•!  Myers  v.   Buchanan,   46  Miss. 

Roll  V.  Rea,  50  N.  J.  L.  264.  397;    Steele  v.   Boone,  75  111.  457; 


REGISTRATION.  037 

erty  which  forms  the  yubjcct-uiatter  of  the  sale.  If  at  the 
time  of  makiuy  his  coutiact  a  puichaser  has  notice  of  a  prior 
unrecorded  deed,  he  is  rej^arded  as  acting  in  bad  faith;  and 
neither  the  principles  of  justice  nor  the  policy  of  the  law  will 
allow  him  to  avail  himself  of  his  priority  of  record  to  super- 
sede the  claims  of  a  bona  fide  purchaser  and  permit  him  to 
triumph  in  his  fraud/'*  No  principle  of  the  law  of  notice 
seems  to  be  better  or  more  firmly  established  than  this;  and, 
so  far  as  the  practical  application  of  the  rule  is  conceraed,  it 
makes  no  difference  whether  the  unrecorded  instrument  con- 
fers a  legal  right  or  a  mere  equity.  Hence,  the  purchase  of 
land  with  full  knowledge  of  the  fact  that  the  vendor  has  con- 
tracted to  convey  to  another  subjects  the  purchaser  to  the 
rights  and  equities  of  the  claimant  under  the  contract.^^ 

It  is  difficult,  however,  to  lay  down  a  general  rule  as  to  what 
facts  will  in  every  case  be  sufficient  to  charge  a  party  with 
notice,  or  put  him  on  inquiry  as  to  whether  a  prior  deed  has 
been  made.  The  information  received  must  be  of  that  charac- 
ter that  a  prudent  person,  by  the  exercise  of  reasonable  and 
ordinary  diligence,  could  upon  inquiry  and  investigation 
arrive  at  the  fact  of  the  existence  of  such  prior  conveyance.^*^ 
It  has  been  held  that  whatever  is  notice  enough  to  excite 
attention  and  put  a  party  on  his  guard  and  call  for  inquiry  is 
notice  of  everything  to  which  such  inquiry  might  have  led; 
and  every  unusual  circumstance  is  a  ground  of  suspicion  and 
prescribes  inquiry.^'^ 

Bare  suspicion  of  title  in  another  will  not  be  sufficient  to 
raise  an  inference  of  fraudulent  intent  ;58  but  where  a  party 
has  heard  of  a  sale  of  the  land  before  he  purchased,  and  from 
a  source  entitled  to  reasonable  credit,  and  under  circum- 
stances not  likely  to  be  forgotten,  it  seems  a  duty  would 
devolve  upon  him  of  tracing  out  the  matter  and  acertaining 

Gammon    v.    Hodges,    73    III.    140;  ^7  Russell  v.  Rauson,  76  111.  167; 

Armentrout  v.   Gibbons,  30  Gratt.  and  see  Gardner  v.  Early,  72  Iowa 

(Va.)   632;   Houston  v.  Blythe,  71  518. 

Tex.   719;     Crone  v.   Dameron,   98  ss  McConnel    v.    Reed,    4    Scam. 

Mo.  567.  (111.)    117.     The  mere  fact  that  a 

54  McConnel    v.    Reed,    4    Scam,  purchaser  of  land  some  time  before 

(111.)    117;    Claibourne  v.  Holmes,  his  purchase  had  an  interview  with 

51  Miss.  146.  his  grantor,  who  informed  him  that 

G5  Glover   v.  Fisher.   11   111.   606.  at   that  time  he  was  not  able  to 

5c  Chicago  v.  Witt,  75  111.  211.  make  a  marketable  title,  but  in  a 


638  REGISTRATION. 

its  truth.^9  It  is  not  necessary  that  actual  notice  of  the 
existence  of  a  deed,  as  used  in  contradistinction  to  the  con- 
structive notice  given  by  a  record,  should  be  proved  by  direct 
and  positive  evidence  that  the  subsequent  purchaser  actually 
knew  that  such  deed  was  in  existence.  The  fact  of  notice  may 
be  proved,  like  any  other  fact,  by  any  proper  evidence,  direct 
or  circumstantial.^" 

But  while  an  unrecorded  deed,  as  a  general  rule,  is  void  as 
against  a  subsequent  deed  taken  in  good  faith  and  duly 
recorded,  the  question  seems  to  be  involved  in  some  doubt 
where  the  subsequent  deed  is  a  mere  quitclaim  of  such  inter- 
est as  the  grantor  may  have.^^  The  subject  of  quitclaims  has 
been  a  theme  of  great  diversity  of  opinion  in  the  United 
States,  and  productive  of  a  number  of  contradictory  decisions; 
but  the  volume  of  authority  seems  to  hold  that  a  purchaser  by 
quitclaim  is  not  to  be  distinguished  from  a  purchaser  by  bar- 
gain and  sale  or  with  warranty,  unless  there  is  something  in 
the  deed  to  put  the  purchaser  on  notice.*^^ 

§  540.  Continued — As  between  the  parties.  As  between  the 
purchaser  of  land  and  his  vendor,  it  is  of  no  importance  that 
the  deed  of  conveyance  be  recorded  ;*^3  and  the  same  rule  holds 
good  between  the  holder  of  the  first  conveyance  and  a  sub- 
sequent purchaser  from  the  same  vendor,  where  the  latter  has 
notice  of  the  prior  deed,  or  when  his  purchase  is  not  for  a 
valuable  consideration.^* 

short  time  he  would  be,  is  not  suflB-  divided.  In  Wisconsin  a  quitclaim 
cient  to  give  the  purchaser  notice  deed  is  a  conveyance,  which,  when 
of  the  existence  of  an  adverse  un-  recorded,  protects  the  grantee 
recorded  deed  to  the  same  land,  against  a  prior  unrecorded  war- 
Chicago  V.  Witt,  75  111.  211.  ranty  deed.  Cutler  v.  James,  64 
59  Cox  v.  Milner,  23  111.  476.  Wis.  173.  To  the  same  effect, 
eoMaupin  v.  Emmons,  47  Mo.  Strong  v.  Lynn,  38  Minn.  315; 
304.  where  a  quitclaim  deed  is  held  to 
■  61  See  "Quitclaim  deeds,"  ante.  stand  on  the  same  footing  as  all 
62  On  the  question  as  to  whether  other  original  conveyances.  See 
an  unrecorded  deed  would  be  void  also.  Brown  v.  Oil  Co.  97  111.  214; 
where  the  subsequent  deed  was  a  Fox  v.  Hall,  74  Mo.  315;  Hoyt  v. 
mere  quitclaim  of  such  interest  as  Ketcham,  54  Conn.  60. 
remained  in  the  grantor,  and  fol-  C3  Dozier  v.  Barnett,  13  Bush 
lowed  sundry  mesne  conveyances  (Ky.)  457;  Raines  v.  Walker,  77 
to  persons  who  were  affected  by  Va.  92;  Jackson  v.  West,  10  Johns, 
notice  of  the  first  grantee's  equi-  (N.  Y.)  466;  Keen  v.  Schnedler,  92 
ties,  the  court  in  De  Veaux  v.  Fos-  Mo.  516. 
bender,  57  Mich.  579,  was  equally  64Maupin  v.  Emmons,  47  Mo.  304. 


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